Servitudes

charateristics

Types

Servitudes - a right or obligation regarding use of land that runs with the land

Affirmative servitude = easement = right to enter or use another's land for a specific purpose

Negative servitude = covenant = limits what you can do on your own land

Servient estate is the land subject to the servitude

Benefitted estate is the dominant tested

Non possessory right/interest use another's land that runs with the land

Related to a license but not easily revoked like licence - also a license does not run with land - licence is not a interest in property.  

Creation can be done at creation of deed, when property is sold and must be in writing (expressed easement in writing)

Does the benefit run with the land?  If so, then easement is Appertuent - cannot be severed from the land - has both dominant and servient esate

Does the benefit run with an individual or with an entity, then easement is in gross (railroads, utilities, sometimes to specific person on another's personal property)

- only has servient estate. 

1. In Writing
2. Holder of servient estate had notice - actua (he was told)l, constructive (if properly recorded) or inquiry notice (should have asked)
3. Original parties to the easement INTENDED that the easement runs with the land.  

1) in writing

2) Intent

Does not require notice

1. Preferred by courts
2. Intent was ingress and egress
3. Usefulness of the easement that is separate from the neighboring land
4. If no one is specifically named exclusively (although Green vs Lupo they were named)

• What were the conteplated uses originally intended
• If there is an unreasonable burden on servient estate = out of scope
• Is the specific purpose reasonably within the initial intent
• Note that changes in technology and time can change the scope of the easement to accommodate normal development of the dominant estate as long as it does not unduly burden servient estate

1) owner of the easement may improve, prepare and maintain easement in a manner to promote the purpose of the easement

2) owner of the easement cannot put undue burden on the servient estate / easement

3) Owner of the servient estate has a duty to not interfere with the use of the easement.  

4) owner of easement must not go beyond the scope allowed in the easement

For In Gross easements only

If exclusive, then they are apportionable to other similar entities (cablevision) - servient owner excluded from participation in the easement

Non exclusive - servient owner retains ability to share the benefit of the easement - the easement holder CANNOT apportion/share the eastment to another 

Commercial In gross easements normally exclusive/apportionalble

If the scope is ambiguous: 

the holder of easement can use the servient estate in a

manner that  is reasonable to accomplish the purpose of the easement

as contemplated by the parties at the creation of the easement.

Traditionally requires mutual agreement

New rule allows for unilateral relocation to benefit the development of the servient estate SOMETIMES

1. Easement by estoppel
2. Easement by prescription
3. Easement implied by prior use
4. Easement by necessity

Licence is granted

License is reasonably relied upon or foreseeably relied upon

License is revoked

Injustice to dominant estate from revokation

Normally where there is 1) issue with statue of frauds, fraud or misrepresentation, or 3) reasonable reliance.  

Is it appportionable

Is the new scope in line with initial intent of scope

Is there an undue or unreasonable burden on servient estate

Similar to adverse possession

1. Open and notorious
2. Continual
3. Exclusive - land owner has tried to exclude you - not did I exclude others...
4. Actual use
5. Adverse and hostile - must TRESSPASS

Specific elements:

1. Parcel previously owned byy common owner/grantor
2. One parcel was used to benefit another
3. Use was obvious, continuos and permanent
4. Easement is REASONABLY necessary for use and enjoyment of dominant estate
   1. lower standard than for easement by necessity
5. No contrary intention expressed  or implied

Specific Elements

1. Land was commonly owned
2. Land was severed
3. Severance created the necessity - landlocked
   1. STRICT NECESSITY - higher standard than "reasonable" necessity
4. NO PRIOR USE OF THE EASEMENT - WAS NOT OBVIOUS, PERMANENT OR CONTINUOUS