Rights in Real Property - Quimbee

An interest that affords the holder specific rights in a parcel of land falling short of outright possession.

These interests often burden one parcel of land to benefit another.
Benefitted parcel : dominant tenement (or estate),
Burdened parcel : servient tenement (or estate).

Major nonpossessory interests are RCEPES: (1) Real Covenants, (2) Easements (3) Profits (4) Equitable Servitudes.

Benefitted Parcel : Dominant tenement (or estate),

Burdened Parcel : Servient tenement (or estate).

The dominant tenement (or estate),

The servient tenement (or estate).

RCEPES

(1) Real Covenants.
(2) Easements.
(3) Profits.
(4) Equitable Servitudes.

(1) an agreement regarding the use of land that includes
(2) a promise by one or more parties to do or to refrain from doing something on the promisor’s land,
(3) for the benefit of the promisee’s land,
(4) which is binding on the parties’ successors in interest and
(5) enforceable by an action for damages.

These are sometimes said to restrict or enhance the parties’ use and enjoyment of the land. The hallmark of this is that it can run with the land and bind successive interest holders.

Real covenants. The hallmark of a real covenant, as opposed to a personal covenant, is that a real covenant can run with the land and bind successive interest holders.

The hallmark of a real covenant, as opposed to a personal covenant, is that a real covenant can run with the land and bind successive interest holders.

Like a real covenant, this is an agreement between two parties regarding land which (1) benefits a dominant tenement, (2) burdens a servient tenement, and (3) is enforceable by and against the successors in interest to the original parties.

Unlike a real covenant, this is enforceable by way of a proceeding for an injunction to compel the obligor to abide by this.

(1) benefits a dominant tenement,
(2) burdens a servient tenement, and
(3) is enforceable by and against the successors in interest to the original parties.

Unlike a real covenant, an equitable servitude is enforceable by way of a proceeding for an injunction to compel the obligor to abide by the equitable servitude.

Unlike a real covenant, an equitable servitude is enforceable by way of a proceeding for an injunction to compel the obligor to abide by the equitable servitude.

A real covenant or equitable servitude that prohibits certain activity related to the servient tenement, with the purpose to enhance the use, enjoyment, or value of the dominant tenement (e.g., a covenant against blocking a scenic view).

These often apply to the discrete parcels in a residential subdivision, their general purpose being to maintain the neighborhood’s residential quality.

They often apply to the discrete parcels in a residential subdivision, their general purpose being to maintain the neighborhood’s residential quality.

A real covenant or equitable servitude that obligates the promisor to do something related to the servient tenement to enhance the use, enjoyment, or value of the dominant tenement, such as to maintain a hedge or pay fees to maintain common areas in a development.

At common law, these were not enforceable. Under modern law, they are enforceable, but some courts tend to scrutinize them closely.

• The difference between the remedy for violating a real covenant and the remedy for violating an equitable servitude is that between money damages and an injunction.
• That is, the remedy for violating a real covenant is money damages.
• However, the remedy for violating an equitable servitude is an injunction compelling the breaching party to adhere to the equitable servitude.
• If the PL seeks money damages, then the requirements for an enforceable real covenant apply. If the PL seeks an injunction, then the requirements for an enforceable equitable servitude apply.
• Thus, the analysis often turns on the nature of the remedy sought.

• Contract law generally governs the enforceability of a real covenant between the original parties.

• However, the enforceability of a real covenant by and against the original parties’ successors in interest is a matter of property law.

• Yes. The court will interpret the written contract as an equitable servitude. Both real covenants and equitable servitudes are promises made between two parties, which benefit one estate (i.e., the dominant estate) and burden another (i.e., the servient estate). Traditionally, a major distinction between real covenants and equitable servitudes was the remedy: real covenants were enforceable by money damages, but equitable servitudes were enforceable by injunctive relief.

• Here, the neighbor is seeking injunctive relief instead of money damages. Thus, the court will interpret the homeowner’s promise to refrain from using her property for commercial purposes as an equitable servitude.

(1) Covenant must be in a writing that satisfies the statute of frauds;
(2) Original obligor and obligee must have intended, at the time of conveyance, for the covenant to run with the land;
(3) Burden must touch and concern the land, i.e., must benefit or restrict the parties as landowners, with respect to the occupation, use, or enjoyment of the land;
(4) Must be horizontal privity between the covenanting parties
(5) Must be vertical privity (i.e., the successor in interest owns the entire estate of an original covenantor); and
(6) Obligor’s successor in interest must have legally effective notice of the covenant.

• The primary difference between a dominant tenement and a servient tenement is that one is burdened for the benefit of the other.
• The land that is benefitted by a nonpossessory right is called the dominant tenement (or dominant estate).
• The land that is burdened by the right is called the servient tenement (or servient estate).

(1) Covenant must be in a writing that satisfies the statute of frauds, typically a deed between the original parties;
(2) Original parties must have intended for the covenant to run with the land (i.e., benefit and burden the original parties’ successors in interest);
(3) Covenant must touch and concern the land; and
(4) Party seeking enforcement must hold some estate in the dominant tenement, even if a lesser estate than the original promisee’s estate; and
(5) Servient owner must hold the original promisor’s full estate.

(1) In most cases, the equitable servitude must be expressly set out in a writing that satisfies the statute of frauds, typically a deed between the original parties;
(2) Original parties must have intended that the equitable servitude run with the land (i.e., benefit and burden the original parties’ successors in interest);
(3) Equitable servitude must touch and concern the land; and
(4) Owner of the servient tenement must have adequate notice of the equitable servitude.

Yes. Language of successorship generally indicates that the original parties to a real covenant or equitable servitude intended for it to run with the land. Put differently, the parties likely intended for the restrictive covenant to run with the land if the writing refers to those who may succeed to all or some part of an original party’s estate in the property–language making the covenant binding upon the parties’ heirs, successors, or assigns.

Yes. In general, permanence of obligation indicates that the original parties to a real covenant or equitable servitude intended for it to run with the land. Put differently, if the obligations in the covenant could reasonably continue for as long as the property exists (e.g., covenant not to obstruct a scenic view), then this weighs heavily in favor of finding that the parties intended for the covenant to run with the land.

Yes. Intent for an equitable servitude to run with the land will be inferred if the original covenant was part of a general plan of development involving multiple parcels of land—e.g., a residential subdivision. In this case, courts generally assume without much discussion that the covenant was meant to burden and benefit the original parties’ successors in interest.

It's to say the covenant benefits and burdens the parties as landowners, with respect to the occupation, use, or enjoyment of the land. In general, a covenant touches and concerns the land if it:
(1) Requires or prohibits certain activities on the land;
(1) Increases the dominant tenement’s value and decreases the servient tenement’s value; or
(1) Requires that one party pay money to maintain property—e.g., an obligation to pay fees to maintain common areas in a condominium or similar development.

• To say that the original parties to a real covenant were in horizontal privity means that the original parties had some shared or simultaneous interest in the properties subject to the covenant.
• Horizontal privity virtually always exists if the covenant arises as part of a transfer of an estate in real property.
• Not all jurisdictions require horizontal privity for a real covenant to be enforceable against successors in interest to the original promisee, but some do.

Means that the owner of the dominant or servient tenement has succeeded to the entire estate of an original party to the restrictive covenant.

The question is not whether the successor in interest owns some estate in the same property, but rather whether the successor owns an estate of the same duration in the same property as an original party.

(1) Srvient owner subjectively knows about the covenant,
(2) Overall circumstances would put a reasonable person in the servient owner’s position on notice of the covenant, or
(3) Covenant is properly recorded in the appropriate land-records office.

No. The oral agreement between the musician and the librarian is not an enforceable real covenant. A real covenant is a promise that concerns an interest in land. Real covenants must be incorporated into a writing that satisfies the statute of frauds to be enforceable.

Here, the oral nature of the agreement between the musician and the librarian does not satisfy the written requirement of the statute of frauds. Thus, the musician’s promise not to play music after midnight is not a real covenant.

(1) Common grantor, such as a developer, subdivides land into smaller parcels for sale;
(a) some purchasers’ deeds contain a use restriction on the property to further a uniform plan of development that exists at the time of transfer; and
(b) some purchasers’ deeds do not contain the restriction, but these purchasers have adequate notice of the restriction at the time of transfer.

In these circumstances, the use restriction is enforceable against purchasers whose deeds do not mention it. However, not all jurisdictions recognize implied reciprocal servitudes. In these jurisdictions, the restriction must appear in a particular purchaser’s deed or another writing or it will be unenforceable.

(1) Use restriction appears in multiple deeds in the same development,
(2) Deeds in the development indicate that the restriction is meant to run with the land,
(3) Common grantor has submitted a subdivision map to a local authority (e.g., a zoning board),
(4) Common grantor does not retain the right to alter the servitude or impose new ones post-conveyance,
(5) Common grantor mentions the uniform plan to prospective purchasers, and
(6) Subdivision has a general residential or other uniform character.

A defense against enforcement of a real covenant or equitable servitude. It applies if the plaintiff has repeatedly, knowingly failed to challenge substantial, widespread violations of the same covenant by persons other than the particular defendant. Trivial or sporadic violations cannot establish abandonment. Rather, the violations must show intent to subvert the covenant’s purpose, making it so that nothing would be gained from enforcing the covenant. Relevant factors include: (1) the violations’ frequency and severity; (2) any prior efforts to enforce the covenant; and (3) whether enforcing the covenant would produce any appreciable benefits, despite the violations.

(1) the violations’ frequency and severity;
(2) any prior efforts to enforce the covenant; and
(3) whether enforcing the covenant would produce any appreciable benefits, despite the violations.

A defense to enforcement of a real covenant or equitable servitude. Applies if the PL has knowingly disregarded previous covenant violations by the DF, thus justifying the defendant to conclude that the PL no longer intends to enforce the covenant. Under this, PL essentially waives the benefit of the covenant through inaction. It in turn, may afford a defense of abandonment to servient owners other than the DF.

A defense against enforcing a real covenant or equitable servitude, which applies if:
(1) PL has unreasonably delayed suing to enforce the covenant after discovering the violation, and
(2) due to the delay, enforcing the covenant would cause the DF undue hardship.

Generally arises if the PL’s delay in suing makes it reasonable for the DF to conclude that the PL does not intend to enforce the covenant.

Bars PL from enforcing a real covenant or equitable servitude if PL has also violated a similar covenant burdening the PL’s own land. PL’s violation need not be as serious as the DF’s, but it must be more than merely technical, semantic, or trivial.

No. A covenant that prohibits the use or enjoyment of real property by a person of a particular race is unenforceable. Covenants or servitudes based on race or other prohibited characteristics are usually unenforceable, under both the United States Constitution and civil rights legislation.

Yes. A court will enforce the covenant. Each common-interest community is governed by a set of restrictive covenants that regulate the governance of the community association and impose use restrictions to the individual units. Most of these covenants are presumed valid, but courts will refuse to enforce those that are plainly arbitrary or contrary to public policy. Architectural review committees may regulate the community’s aesthetic appearance. Generally, courts will enforce real covenants requiring the submission of building plans for approval. However, the decisions of architectural-review committees will be upheld only if the decisions are reasonable and made in good faith.

Here, the facts do not suggest the covenant was arbitrary or contrary to public policy. Thus, so long as the review committee’s decisions are reasonable and in good faith, a court will enforce the covenant.

Yes. The plaintiffs will succeed. Generally, servitudes must be in a clear and express writing to be enforceable. However, most jurisdictions will enforce implied reciprocal servitudes if: (1) the plaintiff’s property and the defendant’s property are part of a common grantor’s uniform plan of development, and (2) the owner of the burdened property has adequate notice of the servitudes.

Here, both parties trace their title to a common grantor. The property in dispute is part of the grantor’s uniform plan of residential development, as evidenced by the general residential character of the subdivision and the anti-commercial-use covenants in deeds 1-48. The defendants were placed on inquiry notice of the common scheme, because the first 48 lots had the same general residential appearance. Thus, the owners of parcels 49 and 50 will be enjoined from using their land for commercial purposes.

For the burden of a real covenant to run with the land, it must touch and concern the land. This means that the covenant must benefit or restrict the parties as landowners, with respect to the occupation, use, or enjoyment of the land. For purposes of identifying a real covenant, it can be useful to ask whether a covenant requires or prohibits certain activities on the land, increases the value of the dominant tenement, or decreases the value of the servient tenement.

Means that the original parties had some shared or simultaneous interest in the property subject to the covenant. In older English law, this could exist only between a landlord and a tenant. American courts later expanded the concept to include a grantor and a grantee, who were considered to be in privity at the moment of the conveyance. Thus, this virtually always exists if the covenant is part of a transfer of real property

No. The grantor will not be successful. For the burden of a covenant to run with the land and bind the obligor’s successors in interest, there must be vertical privity. Vertical privity exists if a successor in interest owns the entire estate of an original covenantor. The question is not whether the successor owns the same literal land surface, but whether the successor holds an estate of the same duration as the original covenantor.

Here, the daughter is the original covenantor, and the friend is her successor in interest. The daughter owned the property in fee simple absolute, but she leased the property to her friend for a five-year term. Because the friend succeeded to less than the daughter’s full estate, there is no vertical privity. The burden of the covenant thus does not run with the land, and the grantor’s lawsuit against the friend will fail.

• Under this doctrine, a real covenant or equitable servitude will terminate if complete ownership of both the dominant and servient tenements vests in one person, leaving no outstanding interests in either parcel.
• Having vested in one person, both the benefit and the burden merge into fee simple ownership.

Yes. The owner of the dominant estate can terminate a real covenant or equitable servitude by executing a written release. The release must comply with the same formalities that govern any transfer of an interest in real property, particularly the statute of frauds.

Yes. By statute, many jurisdictions limit the duration of real covenants and equitable servitudes to a specific period (e.g., 30 years). These statutes may afford an option to renew or extend the restrictive covenant beyond the limitations period by following certain procedures. Failure to follow the procedures means that the restrictive covenant terminates at the end of the period.

Yes. A real covenant or equitable servitude can terminate by its own terms. Most often, it will be set to terminate upon a specific future date or event.

Under the doctrine of changed conditions, a real covenant or equitable servitude becomes unenforceable if changes in the dominant and servient tenements’ conditions have rendered the covenant obsolete and unable to fulfill its purpose. Put differently, the changes must make it so that enforcing the covenant would unfairly burden the servient tenement with no corresponding benefit to the dominant tenement. In the case of an entire development subject to a covenant, such as a residential subdivision, the changes must affect all properties in the development. If the changes affect only some properties (e.g., properties on the periphery), the changed-conditions doctrine does not apply.

No. If the servient tenement is condemned by the government through eminent domain, then any real covenants or equitable servitudes attached to the property will terminate.

(1) PL acted in a way that gave rise to a reasonable belief by DF that PL no longer intended to enforce the restriction,
(2) DF reasonably and detrimentally changed his or her position in reliance on this belief, and
(3) PL should have reasonably anticipated the DF’s detrimental reliance.

If the elements of estoppel are present, and enforcement would unfairly harm DF, then restriction is unenforceable. Once restriction is extinguished by estoppel, restriction becomes unenforceable by both PL and her successors in interest.

Then the restriction will be unenforceable. Once a restriction is extinguished by estoppel, the restriction becomes unenforceable by both the PL and her successors in interest.

The restriction becomes unenforceable by both the PL and her successors in interest.

No. The real covenant will cease to exist, because merger will terminate the real covenant. Merger occurs if complete ownership of the dominant and servient tenements vests in one person, leaving no outstanding interests in either property. At that point, the real covenant terminates automatically.

After the sale, the teacher will be the sole owner of both the servient estate (the businessman’s original plot) and dominant estate (the teacher’s original plot). Further, because the teacher owns his plot in fee simple absolute and is purchasing the businessman’s plot in fee simple absolute, there are no outstanding interests in either estate left in anyone else. Accordingly, complete ownership of the plots will vest in the teacher, and the merger will extinguish the real covenant.

Forms of ownership in which each owner holds his or her own tract or unit subject to a set of restrictive covenants and under the auspices of a community association. CICs are usually residential communities. The major forms of CICs are condominiums, cooperatives, and planned unit developments.

Yes. Restrictive covenants in a common-interest community are generally enforceable. However, courts will not enforce particular covenants that are plainly arbitrary or contrary to public policy (e.g., oppressive, capricious, or spiteful covenants; self-dealing covenants by a common grantor; or covenants imposing unreasonable restraints on trade or alienation).

The standard of review for decisions made by common-interest community associations is the reasonableness standard, which mandates that the boards exercise their discretionary powers in a reasonable manner. Under this standard, the community association’s actions can be overturned if they are arbitrary, unreasonable, or discriminatory.

Yes. In general, the association in charge of a common-interest community has standing to sue to enforce the restrictive covenants that bind the community. In general, standing to enforce a restrictive covenant is limited to the dominant owner—the person who holds the covenant’s benefit. However, common-interest-community associations are typically deemed to represent affected dominant owners in suits to enforce the governing covenants, so they have standing to sue.

No. In general, the actions of a community association in a common-interest community are not subject to the constraints of the U.S. Constitution. Most community associations are private entities, and the Constitution generally applies only to government actions.

However, a legislature may apply constitutional protections to community associations by statute. Also, in certain limited circumstances, constitutional protections may apply directly to community associations (e.g., the unenforceability of race-based restrictive covenants and free-speech protections against an association that is deemed the equivalent of a municipality).

An easement is a non-possessory interest in land that affords its holder a limited right to enter, use, or enjoy land that another rightfully possesses or to prevent certain uses or activities on the land. An easement that affords a right to enter, use, or enjoy the land is an affirmative easement. An easement that merely prohibits uses or activities, without affording a right of use or entry, is a negative easement.

An easement appurtenant is an easement that burdens a servient tenement in favor of a dominant tenement, usually by allowing the dominant owner to use or control the servient tenement in a particular way (e.g., a right of way across the servient tenement permitting access to the dominant tenement). An easement appurtenant is not a right personal to anyone. Rather, the benefit of the easement is an inherent attribute of owning the dominant tenement and the burden is an inherent characteristic of owning the servient tenement. Thus, much like a restrictive covenant or equitable servitude, the benefits and burdens of the easement run with the land and apply to subsequent owners of the dominant and servient tenements.

An easement in gross is an easement that benefits the holder personally, not in the use or enjoyment of a particular parcel of land (e.g., right to swim on or run utility lines across the property). In general, an easement is likely an easement in gross, not an easement appurtenant, if:

only one parcel is involved (i.e., there is not both a dominant and a servient tenement) or
the easement is set to last for only a finite time.
Courts will generally resolve any ambiguity in favor of finding an easement appurtenant, not an easement in gross.

Negative easements were permitted at common law to prevent the servient tenement’s owner from: (1) blocking windows on the dominant tenement, (2) blocking airflow to the dominant tenement, (3) blocking the flow of water in an established channel to the dominant tenement, or (4) removing lateral and subjacent physical support from the dominant tenement. However, modern law often recognizes negative easements for purposes other than these.

Allows the holder to enter the servient tenement to sever and remove products of the soil. Products of the soil are natural resources, such as timber, minerals, or game animals. Like an easement, a profit can be either a profit in gross or a profit appurtenant, though the former is more common. A profit includes an implied easement over the grantor’s land to transport whatever is removed.

No. The easement is an easement in gross. An easement in gross benefits the holder personally but does not benefit the holder in the use and enjoyment of the holder’s own land. By contrast, an easement appurtenant is an easement for the benefit of another parcel of land (i.e., the dominant tenement). The easement enhances the use and enjoyment of the dominant tenement by allowing the dominant owner to use or control the servient tenement in a limited way.

Here, the easement allowing the birdwatcher to enter the owner’s land benefits the birdwatcher personally and not with respect to the birdwatcher’s use or enjoyment of a dominant tenement held by the birdwatcher. Hence, the easement is an easement in gross.

An easement by express reservation is an easement retained by a grantor during a conveyance of real property. The reservation must be explicit and in writing to be valid. The resulting easement benefits the grantor’s property and burdens the grantee’s property.

No. In most jurisdictions, a grantor cannot validly reserve an easement in favor of a third party. The rule in the majority of jurisdictions is that language in an instrument of conveyance purporting to reserve an easement in favor of a third party is void, and thus the grantee need not abide by it. However, a minority of jurisdictions permit express reservation of an easement in favor of a third party.

An easement by express grant is one that arises if a grantor explicitly carves an easement out of a possessory estate in land and transfers it to a grantee. Generally, the conveyance must be set forth in a writing that:

satisfies the statute of frauds (in most cases),
describes the easement clearly enough that a reasonable person could understand what rights are conveyed,
describes a specific servient tenement in existence at the time of the conveyance, and
describes or refers to the dominant tenement (if there is one).

Yes. The creation of an easement by express grant is subject to the same rules governing any express grant of an interest in real property, including the statute of frauds. To satisfy the statute of frauds, the instrument must: (1) describe the interest being created with sufficient clarity that reasonable people can understand what it is; (2) describe a specific servient tenement, which exists at the time of the conveyance; and (3) in the case of an easement appurtenant, describe or refer to any dominant tenement benefitted by the easement.

Here, the instrument describes the dominant tenement (Blackacre) and the servient tenement (Whiteacre). The instrument also clearly describes, in understandable terms, the interest being created—a right of way over a specific gravel trail on Whiteacre, for purposes of going to and from Blackacre. Thus, the statute of frauds is satisfied.

The three requirements for an easement to be implied from prior use are that:

the parcels involved were severed from common ownership;
at the time of severance, there was an apparent and continual use of one parcel for the benefit of the other; and
the existing use was necessary, or at least sufficiently important, to the continuing use and enjoyment of the parcel benefitted.
In general, an easement implied from prior use arises if a grantor divides a tract of land, retains one parcel, and conveys another parcel to a grantee. The resulting easement can arise in favor of the grantor or in favor of the grantee, depending on which of the two parcels is benefitted or burdened by the apparent and continual use. An implied easement is exempt from the statute of frauds.

For purposes of an easement implied from prior use, a use is apparent only if a reasonable inspection of the property would either (1) reveal the use or (2) prompt a reasonable person to inquire further. Some courts also require the use to be visible to the eye upon inspection, which would mean that an invisible use like underground power lines could never be apparent. Other courts hold that invisible uses can be apparent, provided the surrounding circumstances would lead a reasonable person to inquire about their existence.

For purposes of an easement implied from prior use, a use is sufficiently necessary or important if it significantly increases the value of the dominant tenement, or is important or highly beneficial to the use or enjoyment of the dominant tenement. This is reasonable necessity.

However, a minority of jurisdictions require strict necessity. This means that the use must be indispensable for the dominant tenement to have any utility whatsoever—e.g., a lane providing the only lawful access to a public road.

Yes. An easement implied from prior use was created. If a grantor subdivides a parcel and conveys one parcel to a grantee while retaining the other for herself, an implied easement arises if: (1) at the time of severance, one parcel has been in apparent and continual use for the benefit of the other, and (2) the existing use is necessary, or at least sufficiently important, to the continuing use and enjoyment of the parcel benefitted. A use is apparent if a reasonable inspection would reveal the use or lead a reasonable person to inquire. Use is likely continual if one property has been permanently adapted to benefit the other.

Here, when the landowner subdivided the parcels, the road was an obvious and permanent adaptation imposed on parcel 2, advantageous for the use and enjoyment of the gazebo and pond on parcel 1. Thus, the brother will enjoy an easement implied from prior use.

An easement by necessity is an implied easement that arises if:

two parcels are severed from common ownership, which usually means they are subdivided from one common parcel;
the common owner conveys one parcel while retaining the other; and
at the time of the conveyance, there is a strict necessity to create an easement against one parcel to enable the use or enjoyment of the other.

Strict necessity means that implying an easement upon one parcel is indispensable for the other to have any utility or value whatsoever. Almost always, this means that without the easement, there would be no way to access the parcel from a public road without trespassing on someone’s property. Put differently, strict necessity means absolute necessity. Thus, if there is any way for the parcel’s owner to reach it from a public road without trespassing, other than implying an easement, then there is no strict necessity. This is true no matter how burdensome or expensive the alternative is.

The navigable-waters rule is a doctrine that applies in the context of implied easements. Under the rule, strict necessity does not exist if the owner of the parcel can access it over public, navigable waters. This is true even if that is the only lawful way to access the parcel. However, the rule does not apply if the owner can show that the waterway has not in fact been navigated for many years. The navigable-waters rule is a common-law rule. Today, it applies only in some jurisdictions.

Generally, the servient tenement’s owner selects the location of an easement by necessity. The location must be reasonable for both the servient and dominant owners. If the servient owner does not select the location, then the dominant owner may select a reasonable location that does not unduly burden the servient tenement.

Yes. An easement by necessity terminates once the necessity giving rise to it ends. Generally, the necessity terminates if an alternate way to lawfully access the dominant estate from a public road becomes available.

An easement implied from reference to a plat is one that arises if a deed conveying a particular lot within a subdivision to a purchaser expressly refers to a subdivision plat. In this case, courts will imply an easement in the purchaser’s favor. The easement will permit the purchaser to (1) travel over the streets in the subdivision to access the lot and (2) allow visitors to do so.

A special type of license implied by operation of law, which arises if a person owns personal property that is lawfully situated on another’s real property.

In that event, the personal property’s owner has an irrevocable license to enter the land to retrieve, maintain, or use the personal property. However, the real property’s possessor may demand the personal property’s removal at any time.

For a prescriptive easement to arise, the adverse user’s use of the property must be: (1) open and notorious (i.e., not concealed from the property owner); (2) adverse to the property owner’s rights (i.e., without permission); and (3) continuous for the applicable prescriptive period, which is often the statute of limitations for trespass. A prescriptive easement is effectively an easement acquired by adverse possession. The adverse use does not need to be exclusive, unlike the use required to obtain title by adverse possession. The scope of the easement will be defined by the easement holder’s specific use of the property during the prescriptive period. Negative easements cannot arise by prescription.

Yes. Just as an easement may be acquired by prescription, it may be lost by prescription. The servient owner must act in a manner that would be lawful only if the easement did not exist, such as by obstructing a right of way. The prescriptive activity must be continuous, adverse, open, and notorious for the applicable prescriptive period.

In general, the scope of a prescriptive easement is limited to the exact use or activity in which the holder engaged during the prescriptive period. The holder may use the servient tenement only to that extent. Courts will interpret the scope narrowly against the holder.

No. The neighbor’s prescriptive easement cannot be interpreted to cover his playing soccer on the property. Generally, easements by prescription are interpreted very narrowly. Their scope will be limited, more or less, to the exact use of the property obtained during the prescriptive period.

Here, the neighbor’s desire to play soccer on the property is a new, distinct use from his use of the property to reach the local park on foot. For that reason, a court would not permit this new activity under the neighbor’s existing prescriptive easement.

No. In the absence of contrary language, the burden of maintaining the easement normally falls on the easement holder, not the owner of the servient tenement. Consequently, the easement holder has the right to enter upon the servient tenement to maintain the easement, without being considered a trespasser. However, in the process of maintenance, the easement holder may not alter the easement in a way that interferes with the use and enjoyment of the servient tenement. If the servient owner also uses the easement, then each party will be responsible for a proportionate share of the maintenance.

In the context of easements, the servient owner may make any lawful use of the servient tenement. The only restriction is that the use must not unreasonably interfere with the easement holder’s rightful use of the easement. This rule does not prohibit all interference, but only unreasonable interference. Incidental or slight burdens on the use of the easement are permissible.

Yes. In general, the servient owner may use the easement or allow third parties to use it. However, the servient owner may not do this if:

it unreasonably burdens the easement or
the easement is, by its terms, exclusive to the easement holder.

Yes. Generally, the parties’ intent, as indicated in the instrument creating the easement, governs the scope of an express easement. Thus, the easement holder may use the property in any way the instrument expressly or tacitly permits, but not in other ways. If the parties’ intent is unclear, the courts will presume that the parties intended for the easement holder to use the property to the extent reasonably necessary to fully enjoy the easement.

In general, if an easement is implied from prior use, the dominant owner’s use of the servient tenement is limited to the apparent and continuous use that existed when the parcels were severed from common ownership. Put differently, the easement is confined to those uses that the parties might reasonably have anticipated when the grantor severed the property into two parcels and conveyed one to the grantee.

In general, the holder of an easement by necessity may use the servient tenement only to the extent required to make reasonable use of the dominant tenement. The use should burden the servient tenement only minimally.

No. An easement appurtenant may be used only in connection with the dominant tenement. It may not be used to benefit a different parcel.

No. The easement holder may not generally use the easement in a way that is materially different from what the parties reasonably anticipated at the easement’s creation (e.g., running power lines along a driveway easement or greatly increasing the use to accommodate changes on the dominant tenement). This is especially true if the change in use would unreasonably burden the servient tenement.

However, the jurisdictions vary widely in terms of the kinds of uses they will consider to be materially different from what the parties reasonably anticipated at the easement’s creation.

Yes. In general, an easement holder may make improvements to the easement, provided they are reasonable. Improvements are reasonable if they impose no more than a reasonable burden on the servient estate (e.g., paving a right of way).

No. In general, neither the easement holder nor the servient tenement’s owner may change the location or dimensions of the easement without the other’s consent. In a few jurisdictions, though, the servient owner may change the easement’s location or dimensions, provided the change does not (1) significantly affect the easement’s utility or (2) contradict the parties’ intent at the easement’s creation. Additionally, if the easement’s exact dimensions are unspecified, some courts allow the easement holder to enlarge the easement to accommodate changing needs or increased use in the dominant tenement. The change must not unreasonably burden the servient tenement.

To divide an easement means that the easement holder permits third parties to use the easement, usually without the servient owner’s consent. Not all easements are divisible.

An easement in gross is exclusive if the easement holder alone has the right to do what the easement permits. The right must come into effect to the holder and exclude everyone else, including the servient owner.

Yes. In most jurisdictions, an exclusive easement in gross is divisible. However, in dividing an exclusive easement, the holder must not unreasonably increase the burden on the servient tenement.

No. In most jurisdictions, a nonexclusive easement in gross is not divisible. However, a nonexclusive profit a prendre may be divisible under certain circumstances.

In general, a valid license permits the licensee to enter only those portions of the property, engage in only those activities on the property, and occupy the property at only those times that the licensor has expressly or tacitly permitted. If the licensee exceeds the scope of the license (e.g., by going to an unauthorized place, engaging in an unauthorized use, or occupying the property at an unauthorized time), then the licensee becomes a trespasser.

A profit a prendre, or simply a profit, is a special type of servitude that permits the holder to enter upon the servient estate for the specific purpose of extracting timber, minerals, animals (e.g., wild game), or other valuable products of the soil from the servient estate. In general, a profit is deemed to be a type of easement in gross.

The difference between an exclusive and a nonexclusive profit a prendre is the extent to which the profit may be divided, or shared with parties other than the holder. An exclusive profit may be freely divided.

A nonexclusive profit may also be divided. However, if it is divided among multiple recipients, those recipients collectively must not take more resources than the original holder could have taken. The purpose of this rule is to prevent an excessive burden on the land, known as a surcharge. If a surcharge occurs, then the profit is terminated.

Yes. The student’s exclusive easement permits her to allow others to swim in the neighbor’s pond. An easement is exclusive if the easement holder has the sole right to do what the easement permits, to the exclusion of everyone else, including the servient owner. The general rule is that the holder of an exclusive easement in gross (i.e., an easement benefiting a specific person and not a specific parcel of land) may permit others to use the easement.

Here, the student holds an exclusive easement in gross permitting her to swim in the neighbor’s pond, because the benefit of the easement runs to the student personally and not to a parcel of land held by the student. As the holder of the exclusive easement in gross, the student is allowed to invite non co-holders of the easement to swim on the servient estate without the servient owner’s consent.

No. A license is generally not alienable. A license generally is not alienable, because it is a mere privilege that is personal to the holder. Some courts hold that a license terminates if the licensee attempts to assign it, at least without the consent of the licensor. However, a license acquired under contract, for valuable consideration, may be assignable (e.g., a ticket to a sporting event).

No. Traditionally, the common law disfavored easements in gross, and thus, the easements were not transferable inter vivos (between living people), devisable (by will), or descendible (by intestate succession). Some modern jurisdictions permit an easement in gross to pass inter vivos or by will. In other jurisdictions, commercial easements in gross are alienable, but non-commercial or recreational easements are not. The general trend appears to be toward alienability of all easements in gross, unless the parties intend otherwise.

Yes. If the dominant tenement is subdivided, each owner of a subdivided parcel may claim the benefit of an easement appurtenant. However, this must not unreasonably burden the servient tenement.

No. The dominant tenement’s owner may not sever the benefit of an easement appurtenant and convey it independently, retaining ownership of the dominant tenement. That is because an easement appurtenant runs with the land—it is an inherent attribute of owning the dominant tenement. Thus, to transfer the benefit of the easement appurtenant, the dominant owner must transfer the dominant tenement itself. The benefit of the easement transfers automatically with the dominant tenement, just as the burden transfers automatically with the servient tenement.

No. The express easement was not extinguished when the land was conveyed to the son. An easement appurtenant is an easement that is carved out of the servient estate for the benefit of the dominant estate. The easement benefits the owner of the dominant estate in connection with the use and enjoyment of that specific property, by permitting the owner of the dominant estate to exercise limited use or control over the servient estate. Ownership of the easement passes automatically with ownership of the dominant estate.

Here, ownership of the easement appurtenant to use the neighbor’s driveway is an inseparable part of ownership of the property, the dominant estate. Thus, even though the son took the property without notice of the easement appurtenant, the benefits of the easement automatically passed to the son with the conveyance of the dominant estate.

(1) the easement holder or owner of the dominant estate acts in such a way as to give rise to a reasonable belief by the servient owner that the easement holder no longer intends to enforce the easement;
(2) the easement holder should reasonably foresee that the servient owner will detrimentally change his or her position in reliance on the easement holder’s action;
(3) the servient owner in fact does detrimentally change his or her position, in reasonable reliance on the easement holder’s action; and
(4 the servient owner would be unfairly harmed if the easement were enforced.

Yes. If an easement arises by necessity, the easement will terminate when the necessity ends. This typically occurs when an alternative means of access becomes available to the easement holder.

Yes. If the government condemns the servient tenement by eminent domain, then the easement terminates. Put differently, the government takes the servient tenement free of the easement.

Yes. An easement holder can expressly release an easement by a written instrument. The release must meet all the formalities of a conveyance of real property, including complying with the statute of frauds. This is because the release effectively conveys the easement to the servient owner. At that point, the benefit and burden of the easement merge in the servient owner, thus terminating the easement.

An easement terminates by abandonment if the holder acts in a way that clearly indicates intent to relinquish all rights in the easement. Mere nonuse is not enough, though it may contribute to a finding of abandonment in conjunction with other circumstances. As opposed to mere nonuse, abandonment requires affirmative action inconsistent with continued use of the easement, such as building a structure that permanently blocks a right of way.

In general, misuse of an easement means excessive or improper use. Often, this contemplates use so excessive that it unreasonably burdens the servient estate, along with use beyond the easement’s scope.

No. In general, misuse does not terminate an easement. However, a court may order termination as a remedy in specific cases if the misuse is ongoing or especially flagrant, or if an injunction proves ineffective to prevent continued misuse.

In nearly every jurisdiction, an easement burdening only a structure on land terminates if the structure is destroyed without the servient owner’s fault. If the building is destroyed due to the servient owner’s fault, the easement remains intact. However, in at least one jurisdiction, the structure’s destruction terminates the easement regardless of fault. In either case, the easement will not revive if the structure is reconstructed.

No. The homeowner does not have an easement allowing her to use the rebuilt elevator. The majority rule is that, if an easement burdens or benefits only a structure on land (rather than the land itself), and the structure is destroyed without fault of the servient owner, the easement is extinguished. The replacement of the structure will not revive the easement.

Here, the neighbor had no hand in the destruction of the elevator and building on his property, and the easement applied only to the structure on the neighbor’s property and not the neighbor’s property itself. Accordingly, the easement was extinguished after the fire and was not revived even though the neighbor built a replacement structure and elevator. The homeowner thus did not have an easement enabling her to use the rebuilt elevator.

Yes.

In general, a license terminates if either the licensee or the licensor dies.
However, upon the licensor’s death, the licensor’s successors in interest to the property may elect to grant a new license upon the same terms as the preceding one, effectively continuing the preceding license.

Yes.

In general, a license is revocable at the licensor’s will, without any notice. However, a license could become temporarily irrevocable under certain circumstances.

Yes. In some jurisdictions, a contractual license is irrevocable for as long as the contract provides. This is true at least if the contract itself complies with the statute of frauds. Some courts go a step farther and hold that the contract creates an easement, rather than a mere license.

However, other cases hold that even a contractual license is revocable. If the licensor revokes the license in a manner that breaches the contract, the licensee’s remedy is to sue for damages. This situation is most likely to arise in the context of a paid ticket for admission to an event (e.g., a theatrical production).

A license is irrevocable by estoppel if:

the licensee expends substantial money, labor, or other resources to take advantage of the license;
the licensee does so in reasonable reliance on the license, usually based on the licensor’s conduct or representations; and
revoking the license would unfairly harm the licensee by causing the licensee to forfeit the investment.
Under these circumstances, the license will remain irrevocable for as long as is reasonably necessary for the licensee to recoup the investment’s value.