4/27/2012 12:28:00 PM Easement are appurtenant or in gross Appurtenant- two parcel are involved, dominant and servient Appurtenant

benefits easement holder in use and enjoyment of his own land In gross when they confer a purely personal or financial gain on the easement holder Only one parcel of land is involved which is the servient land There is no dominant land, this is a purely personal or commercial gain Common examples of easements in gross Right Right Right o to pace billboard on anothers lot to fish or swim in anothers pond to place utility lines on anothers land Only servient land is burdened, there is no dominant land because the easement in gross is conferring a purely personal or financial gain to the easement holder.

Transferability 1. The appurtenant easement is transferred automatically with the dominant tenement 2. By contrast, an easement in gross is not transferable unless it is for commercial purposes. This is personal to the holder, we wont allow a unilateral transfer of a personal easement in gross because that defies the parties original intentions. Creation of Affirmative easement (4): Confer the right to go onto anothers land and do something **(PING) Prescription Easement may be acquired by meeting the elements of adverse possession Adverse Possession: (COAH) C- Continuous Use for the statutory period O- Open and notorious use- quite visible pattern of use A- Actual use- quite literal pattern of actual use

H- Hostile use; without the servient owners consent

Implication Easement implied from existing use A owns 2 lots, lot 1 is hooked up to a sewer drain located on lot 2. A sells lot 1 to B. With no mention of any right to use the drain on As remaining lot 2. The court may imply an easement on behalf of B, if 2 circumstances are met: o A. the previous use was apparent o B. parties expected that it would survive division because it is reasonably necessary to the dominant lands use and enjoyment. Parties expected that the use would continue because it is reasonably necessary. Necessity landlocked setting right of way easements implied by necessity when grantor conveys part of his land with no way out except over some part of grantors remaining land I won 100 acres, I convey 2 acres conveyed to you in the middle of the 98 acres. Courts will imply an easement of necessity over some portion of the remaining acreage.

Grant (deed) Easement to endure for more than one year must be in a writing because of the SOF.

Scope of easement is set by the terms or conditions that created it We dont allow unilateral expansion Terminating an easement (6): 1. easements created by necessity expire as soon as the necessity ends

2. estoppel applies when servient owner materially changes position in reasonable reliance on the easement holders assurances that the easement will not be enforced suppose that A tells B that A wont be using her right of way anymore over Bs parcel. In reasonable reliance, B builds a swimming pool thereby depriving A of the easement. In equity, A is estopped from enforcing the easement. 3. Written release (most common) given by easement holder to servient owner 4. Abandonment easement holder must show by some affirmative physical action the intent to never use the easement again 5. Merger Doctrine synonymous with unity of ownership meaning the easement ends when title to the easement and title to the servient land become vested in the same person you dont need an easement over property you own

6. Prescription servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession COAH o Continuous interference o Open and notorious o Actual o Hostile to the easement holder Servitudes: non possessory interests II. License mere privilege to enter anothers land for some delineated purpose not subject to SoF, you dont need a writing to create a license

licenses then are tremendously informal devices, they are the flimsiest member of the servitude family can be created orally **licenses are freely revocable at the will of the licensor unless estoppel applies to bar revocation

Classic license cases Tickets create freely revocable licenses Neighbors talking by the fence; seemingly oral easements create instead freely revocable licenses. Estoppel will bar revocation of a license but only when the licensee has invested substantial money or labor or both in reasonable reliance on the licenses continuation. Look for an investment on the part of licensee of considerable money or labor as a consequence of its reasonable reliance that the license would endure.

III. Profit Entitles its holder to enter servient land and take from it the soil or some resource on the land Usually some substance of the soil Most common examples of profits are the rights to take mineral from the land, timber from the land, right to drill and extract oil from the land Profit subject to all the rules of easements

IV. Covenant- promise to do or not do something related to land Starts off as a contractual obligation to land o It is very different from an easement because covenant starts if as a mere contractual limitation regarding land Can be negative (Restrictive covenants) Promise to refrain from doing something relating to land Money damages

Ex. I promise not to build for commercial purposes Most covenants will be negative

Affirmative covenant- promise to do something related to land I promise to paint our common fence V. Equitable Servitude: How will you now whether to construe the promise as a covenant or equitable servitude? o When P wants money damages construe as a covenant, when P wants injunction construe as an equitable servitude. o Covenant is a legal device that grew up at law, accompanied by legal remedy of money damages o Equitable servitude has its origins in equity, accompanied by relief of injunction When will the covenant run with the land? When it is keepable of binding successors It becomes a real covenant when it is capable of not just binding the immediate

-Does the burden of As promise to B, run from A to A1? -Always start with the burden side because it is harder for burdens to run than benefits Elements needed for the elements to RUN with the land: (WITHN) 1.Writing Original promise was in writing 2. Intent original parties intended that the benefit would run courts are generous in presuming intent as running with the landvery readily disposed of 3. Tough and Concern the land promise must effect the parties as landowners and not simply as members of the community at large

 when it has some nexus to the affected parcel 4. Horizontal and Vertical Privity are both needed for the burden to run Horizontal- refers to connection between the original parties o A and B had to have been in succession of a state; A and B enjoyed a grantor/grantee or landlord/tenant or mortgagor/ mortgagee relationship when the promise was made or A and B also share some other servitude between them other than this covenant o If at the time A made her promise to B they enjoyed a succession of estate- at the time A made the promise to B they enjoyed a grantor/grantee relationship. If A and B happen to share some form of landlord/ tenant connection. o Difficult to establish; not usually the case that the original parties will be in a succession of a state; its absence is an impediment to a burden running o **Horizontal not needed for the benefit side to run, thats why its easier for benefits to run to successors than for burdens to run Vertical- nexus between A and A1 o Requires some non-hostile connection such as contract, devise, or dissent o The only time vertical privity will be absent is if taken by adverse possession 5. Notice A1 must have had notice of the promise when she took V. Equitable Servitude: 1. It is a promise that equity will enforce against successors. Because it is an equitable promise it takes as its remedy injunctive relief o P is seeking an injunction in order to enjoin the alleged offender to going forward in defiance of the promise 2. To create an equitable servitude that can bind successors (WITNES) o Writing- generally the original promise was in writing

o Intent- parties intended that the promise would bind successors o T- Touch and Concern the Land; promise effects the parties as land owners o N- Notice; the successors of the burdened land had notice of the promise o ES- now within the purview of the equitable servitude. Privity is not needed to bind successors if you are construing the promise in equity. Grew up in equity to avoid some of the hardship that the covenant law instance of privity would otherwise impose. Much more malleable Common Scheme Doctrine- sometimes implied B can be enjoined if 2 elements are met: o Injunctive relief is being sought here. We are thinking in equity (implied equitable servitude) o 1. When the sales began the subdivider had a general scheme of residential development which included defendants lot o 2. The D lot holder had notice of the promise contained in those prior deeds There are three forms of notice: (AIR) 1. actual notice- D had literal knowledge of the promise contained in all of those prior deeds 2. inquiry (lay of the land)- constructive notice imputed regardless of actual notice the neighborhood conforms to a common restriction 3. record- constructive notice Changed Conditions: equitable servitude maybe terminated when change has so infected the given area as to render the purpose of that servitude moot Ex. You are obliged to refrain from building for commercial purposes: this area has become so infected by commercialism that this particular promise no longer makes any sense Adverse Possession:

Possession for a statutorily prescribed period of time can ripen into title if certain elements are met: (COAH)+E 1. Continuous- uninterrupted for the statutory period 2. Open and notorious- sort of possession that the usual owner would make under the circumstances 3. Actual- the entry must be literal 4. Hostile- possessor does not have the true owners permission to be there 5. Exclusive Tacking- one adverse possessor may tack on to his land his predecessors time so long as there is privity Privity is met by any nonhostile nexus- must be peaceful and not hostile Born of a blood relationship between the tackers or contractual relationship, deed, will, so long as the relationship is non hostile we will allow one to tack on to his time his predecessors time to meet the SOL Tacking is not allowed where there has been an outser o If an adverse possessor has come to her place on the land as a consequence of having forcibly remover her predecessor we wont allow her to tack onto her time her predecessors timeshe cannot be the beneficiary of her wrongful conduct

Eminent Domain: Governments 5th amendment power to take private property for public use in exchange for just compensation There are two kinds of takings o 1. Explicit or physical per se taking- overt act of government condemnation; permanent physical intrusion is a per se taking; in exchange government must provide just compensation o 2. Implicit or regulatory taking- government regulation while never intended by government to be a taking, none the less,

has the same effect; government must provide just compensation Zoning: Pursuant to its police powers, government may enact statutes to reasonably control land use Exercise of state and local governments police power to reasonably control land use Variance- principal means available to achieve flexibility in zoning o Two sorts of variances: 1. Area- deals with an allowable use that presents a problem of ill fit. Ex. In this residentially zoned district, I seek permission to add a glass enclosed porch onto my property. In order to do that I need an area variance. **Proponent of area variance must show (1) undue hardship if variance was denied and that the (2) variance wont work detriment or adversely effect to neighboring property values 2. Use variance- permission to depart from the list of allowable uses in a given zone. Ex. May be seeking permission to build a commercial enterprise in an exclusively residential zone much harder to get use variance than area variance need special circumstances which are difficult to establish. Usually prescribed by statutory or regulatory scheme variance is ruled upon by a zoning board, an administrative body who makes determinations as to which variances are granted and denied. Those are appealable to the courts Non-Conforming use- once lawful use now deemed nonconforming because of a new zoning ordinance That newly deemed nonconforming use cant be eliminated all at once unless just compensation is paid

Exactions- amenities government seek in exchange for granting permission to build Ex. You are a developer seeking a permit to build in a given town. The town tells you we will give you the permit if you promise to provide a town pool and park. Sorts of governmental amenities sought in exchange for granting permission to build. Can become tantamount to extortion To pass constitutional scrutiny: any exactions that government seeks must be reasonably related in nature and scope to the impact of the proposed development. If they are not, the exactions are unconstitutional

4/27/2012 12:28:00 PM Express easements termination and extinguishment: Granting language Time limit Loss of purpose Changed conditions Abandonment

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