Property Outline
I.
Servitudes – Non possessory right to control land use of others a.
Easement – right to another’s land i.
Right to land use ii.
Statute of Frauds applies (Needs to be in writing technically) iii.
Non-revocable and usually permanent iv.
Transferable v.
Easement is Appurtenant if – attached to the land (not a person or entity) and cannot be severed from the land ownership package (BOTH benefit and burden run with land ownership)
1.
Automatically transfer as they run with land ownership
2.
Cannot be severed from land ownership vi.
Easement is In Gross if – burden attaches to land, but benefit does not (it is personal and/or benefit is unrelated to land ownership)
1.
Generally transferable if intended to be
2.
Depends on nature of easement and intent of grantors vii.
Scope of Easements
1.
What kind of use is permissible
2.
Is it divisible among multiple new users a.
Depends on grantors intent b.
Presumed if appurtenant c.
If in gross, is easement exclusive to holder i.
Yes – it is apportionable d.
Consider societal interests to fill in gap in grantors intent
3.
What are physical parameters of easement
4.
Is easement use a “surcharge” on the estate (Is it an unreasonable additional burden) a.
Grantors intent b.
Balance interests of easement holder in free development verse interests on servient estate holder in security viii.
Limits on Easement Creation
1.
No easements in 3 rd party (traditional rule some states retain)
2.
Negative easements cannot be created by prescription
3.
Only the following easements on OWN Land have been recognized so far a.
Lateral and sub-adjacent support b.
Right to water flow (depends on state law) c.
Conservation (prevent development) d.
Historic preservation (this could be affirmative too) e.
Right to light and view not being blocked i.
This right will arise only by contract or government regulation NOT by common law
1.
Except possibly for solar energy easement ix.
Termination of Easements
1.
By written agreement
2.
By own terms
3.
By merger (both estates owned by same person)

4.
By abandonment a.
Conduct of easement holder indicates intent to abandon mere non-use is not enough
5.
Adverse possession or prescription by servient estate holder who takes back easement rights
6.
Frustration of purpose – purpose of easement has become impossible to accomplish or no longer serves its purpose
7.
Marketable title acts – in some states easements must periodically be rerecorded to be bound to future owners
II.
Types of Easements a.
Easements By Estoppel (Irrevocable) i.
Landowner Conduct: Landowner induces licensee to act in reliance on access to property (by granting license or acquiescence) ii.
Licensee Conduct: Acts in reasonable reliance (invests money or labor or etc.) iii.
License is made irrevocable and lasts “so long as its nature calls for” (usually permanent) b.
Constructive Trusts i.
Benefit conferred on trust owner ii.
Unjust under circumstances to allow trust owner to retain benefit
1.
Depends on facts and relationship of parties: look for mistake, fraud, quasi fraud, breach of trust or confidence iii.
Remedy: variable to some degree, non titled owner will get benefit and title owner will have to expunge benefit c.
Easements by Prescription i.
Actual use (instead of possession like a title owner for adverse possession) ii.
Open and notorious (puts title owner on notice) iii.
Adverse (Hostile)
1.
No permission by Title Owner (Majority view) a.
Generally presumed (Burden of proof on title owner to overcome presumption) b.
Did title owner expressly grant permission i.
Yes – no hostility ii.
Deny – hostility iii.
Silence/ambiguity – presumed hostile c.
If public access property then presumed permissive
2.
Some states evaluate trespassers state of mind (Minority view) a.
Good faith required – trespasser must be not aware they are trespassing (look for mistake or color of title) b.
Bad faith required - trespasser must intentionally trespass iv.
Continuous v.
For the statutory period vi.
Exclusivity not required as it is for adverse possession, can be shared with the title owner vii.
Policy Rationales for Prescriptive Easements and Adverse Possession
1.
Tresspasser Conduct a.
Reward land use by claimant b.
Reliance on Title owner’s non action

2.
Title Owner Conduct a.
Recognize implicit waiver/acquiescence by title owner b.
Title owner inaction causes loss d.
Easements Implied By Prior Use i.
Overall consider grantors intent verses claimants interests verses societal interests ii.
Elements:
1.
Common ownership of land prior to severance
2.
Use before severance a.
Of one part of the land that benefits another part of the land b.
That is apparent and continuous
3.
Claimed easement is necessary and beneficial to enjoyment of land a.
Necessary – reasonably convenient and is an elastic concept e.
Easements Implied By Necessity i.
Overall consider grantors intent verses claimant interests verses societal interests ii.
Elements:
1.
Severance of title to land held in common ownership
2.
Claimed easement is necessary at time of severance a.
Necessary – with out easement no effective use of the land could be made i.
Look for landlocked parcel – land surrounded by “strangers” (private landowners) and legal access to public road only via grantors property ii.
Lasts as long as necessity does f.
Easements Running With The Land i.
Means that easement attaches to land ownership and burdens or benefits current and successor owners ii.
Easement by estoppel, prior use, and necessity generally run
1.
If intended to and if they are reasonably necessary to enjoy the dominant estate iii.
Requirements
1.
For the burden to run with the servient estate a.
In writing in deed or referenced in a deed b.
Intended to run expressly stated or implied c.
Notice i.
Actual – Landowner in fact knows of easement
1.
Inquiry Notice – visible signs from observing the property suggests that a reasonable buyer should investigate further whether there is an easement
2.
Record/Constructive Notice – a proper title search would reveal the existence of an easement
2.
For the benefit to run with the dominant estate a.
TEST – benefit runs with the land if grantor intended it to i.
Intent can be express or implicit ii.
If ambiguous, ask is easement useful apart from ownership of land or is it primarily useful to anyone who owns the parcel
1.
If useful to anyone who owns the land it is likely intended to run with the land

iii.
Preference or presumption of appurtenance commonly exists
III.
Covenant – obligation on one’s own land a.
Rights and obligations of original covenanting parties i.
Basic idea – if you no longer own the land to which the covenant is attached, you will no longer be burdened or benefited by the covenant ii.
Policy against enforcement of covenants in gross – the benefit cannot be enforced by someone who does not own land to which the covenant is attached iii.
Exceptions
1.
Homeowners association
2.
Government
3.
Charity b.
Running Covenants i.
Means that covenant attaches to land ownership and burdens or benefits whoever owns land ii.
For both burden and benefit to run the covenant must be
1.
In writing
2.
Intended to run a.
Must analyze separately for burdened and benefited estate b.
Depends on grantors intent c.
If deed says “magic words” then YES i.
Covenant to grantor/grantee heirs or assigns ii.
Intended to bind future owners iii.
Intended to run with the land d.
If deed is silent consider i.
Presumption of intent to run if touches and concerns land ii.
Facts and circumstances test to determine intent
1.
Is the covenant primarily beneficial if it does run
2.
Does benefit increase value of dominant estate
3.
Notice to burdened party a.
Actual – landowner in fact knows of covenant, was told or otherwise was aware b.
Inquiry – visible signs from observing the property would indicate property is burdened i.
Unlikely since most covenants are restrictive (hard to see something is
NOT being done) but perhaps a uniform pattern of use could suggest residential only covenant c.
Record/Constructive – a proper title search would reveal the existence of a covenant
4.
It touches and concerns land – what kind of restrictions legitimately will create a corresponding benefit to land a.
Must analyze separately for burdened and benefited estate b.
Traditional test – does covenant have to do with land use i.
Does it affect the quality, value, or mode of enjoying the burdened and benefited property

ii.
Does it affect the parties interests as landowners – is it most useful if attached to land ownership iii.
If there is intent to run likely touch and concern c.
Similar but distinct from intent to run which looks at intention of parties – this says regardless of intent is this a legitimate restriction d.
Modern Test – is covenant reasonable
5.
Privity of estate (required for real covenant not for equitable servitude) a.
Must analyze separately for burdened and benefited estate c.
The Writing Requirement i.
Writing should be in a formal document
1.
In deed to each burdened and benefited parcel
2.
In original deeds attaching covenant
3.
Referenced in a later deed
4.
Stated in declaration of restrictions or a plat ii.
If writing requirement not clearly satisfied consider
1.
Equitable estoppel based on a.
Sellers conduct/inducement i.
Other writing evidencing promise (sales literature, ads) ii.
Oral representations b.
Buyers reliance c.
Inequity of no covenant d.
Horizontal Privity of Estate – law is willing to impose restrictions on land use only if there is some corresponding benefit to someone else’s land use i.
So there must be a shared connection to the land at time promise is made ii.
Look for a transaction between the parties – a transfer of a property interest
1.
Mutual (simultaneous) – grantor/grantee have shared interest for a period of time, grantor retains some interest in the property a.
Lease/easement
2.
Instantaneous – a shared interest for a fleeting moment a.
Sale/Gift/Mortgage iii.
Example of no horizontal privity
1.
No transaction at all, just neighbors making an agreement but not selling property to one another
2.
Or the timing is off a promise made at a time other then when there is transfer or property e.
Vertical Privity of Estate – focuses on relationship between the original and promising parties and successor owners, seek to ensure that successors have a sufficient connection to the land burdened or benefited by the covenant i.
Strict vertical privity – look for transfer of property interest with no future interest retained
1.
Leases do not qualify ii.
Relaxed vertical privity – exists if successor is possessor even if not owner
1.
Leases do not qualify iii.
No vertical privity – just a neighbor who is not in chain of title of burdened or benefited parcel f.
Implied Reciprocal Negative servitude

i.
Common grantor/developer ii.
General scheme or plan of development
1.
Multiple conveyances
2.
Deeds out with substantially uniform restrictions
3.
Other evidence iii.
Record notice – by looking at deeds to other properties showing restrictions on other properties g.
Changed Conditions Doctrine i.
Where fundamental change occurs in intended character of neighborhood ii.
Such that there is no substantial benefit to enforcing it
1.
The essential purpose of the covenant is defeated h.
Relative hardship – focuses on the servient estate i.
Covenant will not be enforced:
1.
Where the harm to sevient estate
2.
is greater by a considerable magnitude
3.
Than the benefit to the dominant estate i.
Termination of Covenants i.
Release by written agreement ii.
By its own terms iii.
Abandonment (tolerated violations by other landowners or other evidence) iv.
Acquiescence (toleration of violation by servient estate) v.
Laches (unexcused delay in enforcement by dominant estate and servient estate reliance on inaction) vi.
Estoppel (dominant estate orally agrees not to enforce) vii.
Prescription (without permission servient estate violates covenant in open and notorious way for statutory period) viii.
Marketable title acts (in some states easements must periodically be rerecorded to be binding on future owners where fundamental change occurs in intended character of neighborhood) ix.
Changed conditions doctrine (traditionally ONLY applied to Covenants NOT easements) x.
Relative Hardship (traditionally ONLY applied to Covenants NOT easements) j.
Policy Behind Rule Against Unreasonable Restraints on Alienation i.
Is concerned about limitation on transferring property ii.
Alienability promotes
1.
Improvement of property – allows shift to more valued use
2.
Liberty of current owners – escape the dead hand of control
3.
Equality/anti-discrimination – promotes widespread access to property k.
The Rule Against Unreasonable Restraints on Alienation i.
TEST: Does limitation effect ability to transfer property
1.
If so is restraint on alienation reasonable a.
Balance the benefits of restraint verse the harm from restraint
2.
Consider the purpose of the restraint
3.
Is application of the rule likely to effectuate (achieve) those purposes
4.
Consider whether exercise of power is arbitrary or impermissibly based on malice or discrimination

l.
Overall Regulation of Covenants for Reasonableness i.
Balance importance of Rule’s objective verse the interests infringed upon ii.
Covenants in existence and with notice pre-purchase have a presumption of validity iii.
Validity of post purchase covenants/rules are evaluated more rigorously iv.
Consider community interests
1.
Economic interests (effects on marketability)
2.
Reliance
3.
Security
4.
Freedom in regulating community life v.
Consider individual owners interests
1.
Economic interests (marketability)
2.
Reliance
3.
Security
4.
Freedom from regulations
5.
Consider societal interests
IV.
Exceptions
V.
Licenses a.
Permission to enter b.
Need not be in writing c.
Terminable at will of grantor d.
Non-transferable i.
Exception tickets
VI.
Recording Acts a.
Common Law Rule (Default Rule) - first in time wins, look at time of actual transfer of property, the date of the deed not the date of its recording i.
This rule governs unless the subsequent good faith purchaser for value satisfies all requirements of the relevant recording acts statute. b.
Race - first to record wins, even if they know of a prior conveyance, like the common law rule that is modified to look at time of recording not time of actual transfer. i.
c.
Notice - Later purchaser wins if i.
Buys later ii.
Is a purchaser iii.
Does not have notice of earlier conveyance
1.
Types of notice a.
Actual b.
Inquiry c.
Constructive - done through a search d.
Race notice - later purchaser wins if i.
Buys later ii.
Does not have notice of earlier conveyance iii.
Recorded first
VII.
Fraud/Forgery a.
Hypo

i.
O actually owns ii.
Sells to buyer 1 iii.
Buyer 1 does not suitably record iv.
O sells to buyer 2 v.
Rule - BFP wins even though fraud committed on Buyer 1 and Buyer 2 b.
Hypo 2 i.
O does not own ii.
O sells to buyer 1 iii.
Buyer 1 records (now a BFP) iv.
Rule - between TO and BFP the TO wins c.
Hypo 3 i.
O does not own ii.
O sells to buyer 1 iii.
Buyer 1 records iv.
O becomes TO v.
O sells to buyer 2 vi.
Buyer 2 records vii.
Rule - between O and Buyer 1 estoppel by deed makes buyer 1 the owner, between buyer 1 and buyer 2 buyer 2 wins if BFP d.
Hypo i.
O is TO ii.
O sells to Buyer 1 because fraudulent inducement by buyer 1 iii.
Buyer 1 sells to Buyer 2 iv.
Buyer 2 is BFP v.
Rule - BFP wins e.
BFP i.
Bought in good faith ii.
No notice
VIII.
Chain of title searches a.
Trace prior record owners under grantee index, going backward in time b.
Search forward in time in grantor  grantee index c.