Chapter 9
EASEMENTS AND PROMISES CONCERNING LAND
A. Definition: An easement is a privilege to use the land of another.
1. Affirmative easement: An affirmative easement is one entitling its holder to do a physical act on another’s land. (Example: A, who owns Blackacre, gives B a right of way over Blackacre, so that B can pass from his own property to a street which adjoins Blackacre. B holds an affirmative easement.)
2. Negative easement: A negative easement is one which enables its holder to prevent the owner of land from making certain uses of that land. These are rare. (Example: A owns Whiteacre, which is next to the ocean; B owns Blackacre, which is separated from the ocean by Whiteacre. A gives B an easement of "light and air," which assures B that A will not build anything on Whiteacre which would block B’s view of the ocean. B holds a negative easement.)
B. Appurtenant vs. in gross: Distinguish
between easements that are appurtenant to a particular piece of land, and
those that are "in gross."
1. Appurtenant: An easement appurtenant is one which benefits its holder in the use of a certain piece of land. The land for whose benefit the appurtenant easement is created is called the "dominant tenement." The land that is burdened or used is called the "servient tenement." (Example: Blackacre, owned by S, stands between Whiteacre, owned by D, and the public road. S gives D the right to pass over a defined part of Blackacre to get from Whiteacre to the road. This right of way is an easement that is appurtenant to Whiteacre — Blackacre is the servient tenement, and Whiteacre is the dominant tenement.)
a. Test for: For an easement to be appurtenant, its benefit must be intimately tied to a particular piece of land (the dominant tenement).
2. Easement in gross: An easement in gross is one whose benefit is not tied to any particular parcel. (Example: O, who owns Blackacre, gives E, who lives across town, the right to come onto Blackacre anytime he wants, and use O’s swimming pool. Since the grant is not given because of E’s ownership of nearby land, the easement is in gross.)
3. Profit: Related to easements is something called the "profit a prendre." A profit is the right to go onto the land of another and remove the soil or a product of it. Thus the right to mine minerals, drill oil, or capture wild game or fish, are all profits. (In the U.S., profits are functionally identical to easements.)
A. Four ways to create: There are four ways to create an easement: (1) by an express grant; (2) by implication; (3) by strict necessity; and (4) by prescription.
B. Express creation: If a easement is created by
a deed or a will, it is "express."
1. Statute of Frauds: An express easement must be in writing. This is required by the Statute of Frauds.
2. Reservation in grantor: Often, an express easement is created when the owner of land conveys the land to someone else, and reserves for himself an easement in it. This is called an "easement by reservation." (Example: A deeds Blackacre to B, with a statement in the deed that "A hereby retains a right of way over the eastern eight feet of the property.")
3. Creation in stranger to deed: At common law, it was not possible for an owner to convey land to one person, and to establish by the same deed an easement in a third person. (Thus an easement could not be created in a "stranger to the deed.") But most modern courts have abandoned this rule. (Example: O owns two parcels, 1 and 2. O sells parcel 1 to P, without recording any easement over parcel 2 in favor of parcel 1. O then deeds parcel 2 to D, with a statement in the deed, "Easement reserved in favor of P or his successors to parcel 1." Today, this easement will be enforced even though P was not a party to the O-D deed.)
C. Creation by implication: An easement by
implication may sometimes be created. If so, it does not have to
satisfy the statute of frauds.
1. Requirements: There are three requirements for an easement by implication: (1) land must be divided up (or "severed"), so that the owner of a parcel is either selling part and retaining part, or subdividing the property and selling pieces to different grantees; (2) the use for which the implied easement is claimed must have existed prior to the severance; and (3) the easement must be at least reasonably necessary to the enjoyment of the dominant tenement.
2. Severance: An easement will only be implied where the owner of a parcel sells part and retains part, or sells pieces simultaneously to more than one grantee. This is the requirement of "severance." (Example: A and B are neighboring landowners. A new street is built adjoining B’s property, and A can only get to this street by crossing B’s property. A crosses B’s property at a particular spot for several years, then sells to C. C has no easement by implication across B’s property, because there was never any conveyance between A and B, required for the creation of an easement by implication.)
3. Prior use: The use for which the easement is claimed must have existed prior to the severance of ownership.
4. Necessity: According to most courts, the easement must be reasonably necessary to the enjoyment of what is claimed to be the dominant tenement. Courts are stricter in imposing this requirement where the easement is created by grant (i.e., in favor of the grantee), than where the easement is reserved (i.e., in favor of the grantor).
Example of easement by implication: O owns two houses side by side on one parcel. To give the garage behind house no. 1 access to the street, he builds a driveway which runs between the two houses. O then conveys house no. 2, including part of the land and the driveway, to A. An implied easement in favor of house no. 1, and against the land on which house no. 2 is located, will be reserved with respect to the driveway. Also, if O conveys house no. 1, an implied easement in favor of that house will be created against the land of house no. 2. This is because: (1) O was the owner of both tenements just before the easement came into being; (2) the use existed prior to the severance of the two tenements; and (3) the easement is reasonably necessary to the enjoyment of house no. 1’s garage.
5. Easement of light and air: An easement of "light and air" (the right to have one’s view remain unobstructed) cannot be created by implication, in most states.
D. Easement by necessity: The courts will find an "easement by necessity" if two parcels are so situated that an easement over one is "strictly necessary" to the enjoyment of the other.
1. Common grantor: The courts require that at one time, both the alleged dominant tenement and the alleged servient tenement were owned by the same person.
2. No prior use: But unlike the easement by implication, there does not have to have been a "prior use," that is, the easement does not have to have been used prior to the time the two parcels were split up. (Example: O owns parcel 1 and parcel 2, which adjoin each other. In 1950, he sells parcel 1 to P and parcel 2 to D. In 1960, an old road serving parcel 1 is closed, and a new one is built so that the only way to get from parcel 1 to the road is by crossing parcel 2. Because both parcels were owned originally by the same owner, O, the courts will grant parcel 1 an easement over parcel 2 to get to the road, even though no such easement was in use at the time O split up the ownership of the parcels.)
3. Landlocked parcels: The most common example of an easement by necessity is where a parcel is landlocked, so that access to a public road can only be gained via a right of way over adjoining property (as in the above example).
E. Easement by prescription: An easement by "prescription" is one that is gained under principles of adverse possession. If a person uses another’s land for more than the statute of limitations period governing ejectment actions, he gains an easement by prescription.
Example: In state X, the statute of limitations on actions to recover possession of real estate (ejectment actions) is 21 years. A, the owner of lot 1, uses a path over lot 2, owned by B, for 21 years. Assuming that the use meets the requirements discussed below (e.g., use must be "adverse," not "permissive"), after the 21 years A gains an easement by prescription, and may use the path as a right of way forever afterwards.
1. When statute starts to run: The statutory period does not begin to run until the owner of the servient tenement gains a cause of action against the owner of the dominant tenement. Therefore, an easement of "light and air" cannot be acquired by prescription (since the owner of the servient tenement never can sue the owner of the dominant tenement, because the latter merely looks out over the former’s property, rather than trespassing upon it).
2. Adverse use: The use must be adverse to the rights of the holder of the servient tenement, and without the latter’s permission. (Example: P and D are next-door neighbors. Solely out of friendship, D agrees that P may use D’s driveway to get to P’s garage. P thanks D for this, and does not say that he is asserting an actual legal right to use the driveway. P’s use is therefore not adverse, so even if the usage continues longer than the statute of limitations, no easement by prescription will be gained. Instead, the use is merely a license, which is revocable at will by D.)
3. Continuous and uninterrupted: The use must be continuous and uninterrupted throughout the statutory period. Thus if the use is so infrequent that a reasonable landowner would not be likely to protest, the continuity requirement is not satisfied.
4. Tacking: There can be tacking on the dominant side of the prescriptive easement. (Example: In a state with a 21-year statute of limitations on ejectment actions, A, the owner of Blackacre, uses a path across Whiteacre for 12 years. He then sells Blackacre to B, who uses the same path for an additional 9 years. At the end of this 9 years, B will have an easement by prescription, because he is in privity of estate with A and therefore can tack his use onto A’s use.)
III. SCOPE OF EASEMENTS
A. Prescriptive easement: If the easement is created by prescription, the scope of the allowable use is determined by looking at the use that took place during the statutory period. Therefore, a use that is substantially broader (or more burdensome to the servient tenement) than existed during the time when the statute of limitations was running, will not be allowed.
B. Development of dominant estate: Regardless of how the easement was created (e.g., whether by implication, prescription, etc.), the court will allow a use that increases dues to the normal, foreseeable development of the dominant estate, so long as this does not impose an unreasonable burden on the servient estate. (Example: A right-of-way easement is created by prescription in favor of the sole house then located on a dominant tenement. After the easement is created, two more houses are built on the dominant property. The residents of all three houses may use the right of way, since the basic use — as a pedestrian right of way — remains unchanged, the increased use is a function of normal development, and the increase in the burden is slight.)
C. Use for benefit of additional property: The holder of the dominant estate is normally not allowed to extend his use of the easement so that additional property owned by him (or by others) is benefitted. (Example: W, the owner of Whiteacre, gives B, the owner of Blackacre, an express easement by which B may cross W’s property to get from the road to a house on Blackacre. B then buys an adjoining parcel, Greenacre, tears down the house on Whiteacre, builds a new house on Greenacre, and extends the path represented by the easement through Blackacre (which he still owns) to get to the new house on Greenacre. W will be able to enjoin this extended use, since the easement is now being used to benefit additional property beyond Blackacre, the originally-contemplated dominant estate.)
IV. TRANSFER AND SUBDIVISION OF EASEMENTS
A. Transfer of burden: When the title to the servient estate is transferred, the burden of the easement remains with the property. (Example: O, the owner of Blackacre, gives A, a neighboring landowner, an express right of way over Blackacre. O then sells Blackacre to B. After the sale, A’s easement remains valid against Blackacre.)
B. Transfer of benefit: Whether the benefit of an easement "runs with the land" (i.e., is enforceable by an assignee) depends on whether the easement is appurtenant or in gross.
1. Transfer of easements appurtenant: An easement appurtenant (one where the benefit applies to particular land only) normally passes with the transfer of the dominant estate. (Thus in the above example, if A sells his land to X, X may enforce the easement against either O or one who bought from O.)
a. Subdivision: Also, if the dominant estate is sub-divided into smaller lots sold to different people, and the geography is such that each of the smaller lots can benefit from the easement, then each will generally be permitted to do so. (But this will not happen if this would result in an extreme increase in the burden to the servient estate.)
2. Easements in gross: But easements in gross are different.
a. Common law: At common law, easements in gross are not transferable. (Example: O owns Blackacre, which adjoins a public beach. O gives A, a friend of his who lives in a different city, the right to park in O’s driveway and walk across A’s land to the beach. Since this easement is "in gross" — it is not intimately tied to particular land held by A — at common law it is not transferable by A to anyone else.)
b. Modern view: Today, courts continue to apply this rule of non-transferability to easements that are "personal" (as in the above example). But courts will often find that a commercial easement was intended to be transferable and will therefore hold it to be so. (Example: O gives the telephone company the right to string wires over his land. Today, because of the commercial nature of this easement in gross, most courts would hold that the phone company can assign this right to some other outfit that takes over the phone operations.)
A. Abandonment: Unlike estates in land, an easement may be terminated by abandonment in some circumstances.
1. Words alone insufficient: The easement holder’s words alone will never be sufficient to constitute an abandonment.
2. Intent plus conduct: But if the easement holder intends to abandon an easement, and takes actions manifesting that intent, he will be held to have abandoned the easement, and it will be extinguished.
a. Non-use: For instance, non-use may on particular facts be action which manifests the easement holder’s intent to abandon, in which case the abandonment will be effective. (Example: A owns a summer cottage, which holds an appurtenant easement to use a driveway on B’s next-door property. If A uses the cottage each year for three years, and fails to ever use the driveway, he may be held to have intended to abandon the easement. But if A’s non-use for three years is because he doesn’t even use the cottage, then no intent to abandon will be found, and therefore there will be no abandonment.)
VI. LICENSES
A. Definition: A license is a right to use the licensor’s land that is revocable at the will of the licensor. This revocability is the main thing that distinguishes licenses from easements. (But there are a couple of exceptions to the revocability of licenses, described below.)
1. No Statute of Frauds: A license is not required to satisfy the Statute of Frauds, so it may be created orally.
2. Illustrations: Some licenses are much like easements, except for revocability (e.g., O orally gives A the right to use O’s driveway to get from A’s land to the public highway; this would be an easement if it were in writing, but is a license because it is oral). Other licenses are much more transitory. For instance, a ticket to a sports event or concert is a license; similarly, the right to use a parking lot is generally only a license.
B. Exceptions to revocability: There are a couple of exceptions to the general rule that licenses are revocable at the grantor’s will.
1. Oral license acted upon: Most important, a license is irrevocable if its use would have been an easement except for failure to meet the Statute of Frauds, and the licensee makes substantial expenditures on the land in reliance on the licensor’s promise that the license will be permanent or of long duration. (Example: P orally gives D permission to build a roadway across P’s land so that D can get from his land to the public highway. D expends substantial money digging and paving the road. P attempts to revoke, and sues D for trespass. A court would probably hold that the license, though oral, was irrevocable because of D’s substantial reliance expenditures.)
VII. COVENANTS RUNNING WITH THE LAND
A. Definition: Like easements, "covenants" may under some circumstances run with the land. A covenant running with the land is simply a contract between two parties which, because it meets certain technical requirements, has the additional quality that it is binding against one who later buys the promisor’s land, and/or enforceable by one who later buys the promisee’s land.
1. Legal relief: When we use the term "covenant," we are talking about a promise that is subject to legal rather than equitable relief. That is, when a covenant is breached the relief granted is money damages, not an injunction or decree of specific performance. (An injunction or specific performance may be granted for breach of what is called an "equitable servitude," discussed below.)
B. Statute of Frauds: For a covenant to run with the land, it must be in writing.
C. Running with the land: The only interesting question about covenants is, When do they run with the land?
1. Running of burden and benefit: More specifically, we want to know: (1) When does the burden run (so that the promisor’s assignee is bound)? and (2) When does the benefit run (so that the promisee’s assignee can sue for damages if the covenant is breached)? We have to worry about: (1) the "touch and concern" requirement; and (2) the privity requirements.
a. "Touch and concern": For the burden to run, the burden must "touch and concern" the promisor’s land. Similarly, for the benefit to run, the benefit must "touch and concern" the promisee’s land.
b. Privity: Also, for the burden to run, there must be "privity of estate," which usually means both a land transfer between the promisor and promisee ("horizontal" privity) plus a succession of estate from promisor to promisor’s assignee ("vertical" privity). For the benefit to run, horizontal privity is sometimes required, but vertical privity is generally not. (See further discussion immediately below).
2. Privity between promisor and promisee ("horizontal" privity): Where a court requires "horizontal" privity, it means that there must be some land transfer between the original promisor and the original promisee.
a. Running of burden: In America, horizontal privity is required in order for the burden to run. This mainly means that if the original parties are "strangers to title," the burden will not run. Thus two neighboring landowners cannot get together and agree that neither will use his property for a certain purpose, and have this restriction be binding on a subsequent purchaser from either of them. (Example: A and B, neighboring landowners, agree in writing that neither will tear down his house to erect a new structure. B sells his property to X, who tears down that house. A cannot sue X for damages, because the burden of the covenant does not run with the land. This is so because there was never any land transfer between A and B, and thus no horizontal privity between them.)
i. Requirement satisfied: But the horizontal requirement is satisfied if the original promisor and promisee have some land-transfer relationship. (Example: A owns two parcels, each with a house on it. He sells one of the parcels to B. In the transfer agreement, A and B each promises the other that he will not tear down the house to build a new structure. B then re-conveys his parcel to X, who tears down the house. Now, A can sue X for damages, because there was horizontal privity between A and B, in the sense of a land transfer between them.)
b. Running of benefit: Most courts hold that there must also be horizontal privity for the benefit to run. (Nearly all courts hold that the same privity rule that applies to running of burden applies to running of benefit; since most courts require horizontal privity for running of burden, they also require it for running of benefit.) (Example: A and B own adjacent parcels. They each agree not to tear down their house and rebuild. A conveys to X; B tears down and rebuilds. Assuming that the state, like most, requires horizontal privity for the burden to run, it will apply the same rule for running of benefit. In that case, X will not be able to sue B for damages, because the benefit does not run due to lack of horizontal privity between A and B.)
3. Privity between litigants ("vertical" privity): When a court requires "vertical" privity, this refers to the relationship between the promisor and his successor in interest, or the relation between the promisee and his successor.
a. Running of burden: For the burden to run, the party against whom it is to be enforced must succeed to the entire estate of the original promisor, in the durational sense. (Example: A and B, owners in fee simple of neighboring parcels, each agree to maintain half of a hedge between the properties. B gives a long term lease to X. X fails to maintain his part of the hedge. A cannot sue X for damages, because there is no vertical privity between B and X — when X took a long term lease, he took only part, not all, of B’s fee simple.)
b. Running of burden: But the vertical privity requirement has much less bite on the benefit side. The benefit may be enforced by anyone who has taken possession of the promisee’s property with the promisee’s permission. (Example: On the facts of the above example, if A gave a long-term lease to Y, Y could sue B if B failed to maintain his part of the hedge.)
i. Homeowners association: If P is a homeowners’ association set up by a developer to collect annual fees from homeowners in a subdivision (used to maintain any common areas), the association may sue non-payers even though the association owns no property in the development. Thus the requirement of vertical privity is almost completely relieved in this instance.
4. "Touch and concern" requirement:
a. Running of benefit: For the benefit to run, that benefit must touch and concern the promisee’s land. But this requirement does not have too much practical bite — most kinds of covenants that have anything to do with real estate (e.g., promises to make repairs, promises not to demolish, promises to pay money to a homeowners association, etc.) are found to "touch and concern" the promisee’s land (as well as the promisor’s land).
i. Burden in gross: If the benefit touches and concerns the promisee’s land, the benefit will run even though the burden does not. That is, the benefit can run even if the burden is "in gross," i.e., personal to the promisor.
Example: D sells land containing a restaurant to P; as part of the transaction, D promises not to operate a competing restaurant within a two mile radius. (Assume that the state holds that a non-compete promise "touches and concerns" the promisee’s land.) P then conveys the property to X. X can sue D for breach of the promise — since the benefit touches and concerns the P/X land, the benefit can run even though the burden is "in gross," i.e., personal to D.)
b. Running of burden: For the burden to run, that burden must "touch and concern" the promisor’s land. But about half of the courts impose an additional significant requirement: these courts hold that the burden will not run if the benefit does not touch and concern the promisee’s land. (That is, half the courts say that the burden may not run when the benefit is in gross.)
Example: A, the owner of Blackacre, sells it to B. B promises not to operate a liquor store on the property so as not to compete with a similar store owned by A on different property. Assume that the state is one which holds that a non-compete promise does not touch and concern the promisee’s land. B then sells Blackacre to C. About half of the courts would hold that A cannot sue C for breach, because the burden will not run where the benefit is in gross, i.e., personal to A.
VIII. EQUITABLE SERVITUDES
A. Generally: The above rules apply where a promise concerning land is sought to be enforced at law, i.e., by the award of damages. But a promise may also be enforced at equity, by the award of an injunction (ordering the defendant not to do something) or a decree of specific performance (ordering the defendant to do something). When a court not only gives equitable relief, but applies it against an assignee of the original promisor, the promise is referred to as an "equitable servitude" against the burdened land.
1. Less rigid requirements: In general, the technical requirements for establishing an equitable servitude that burdens the land are less difficult to meet than the requirements for covenants at law. Therefore, the law of equitable servitudes is generally more important today than the law of covenants at law.
2. Affirmative vs. negative: Most agreements for which equitable enforcement is sought are negative in nature — they are usually agreements not to violate certain building restrictions. But occasionally, an equitable servitude may involve an affirmative promise (e.g., the promise to pay dues to a homeowners’ association, or the promise to make certain repairs), at least in American courts.
B. Privity not required: The requirements of privity are virtually non-existent in connection with equitable servitudes. For instance, two neighboring landowners that never had any land-transfer relationship between them can, by agreement, impose land-use restrictions that will be binding on assignees. (Example: A and B, who own adjacent parcels, agree that neither will tear down his house without the other’s consent. A and B sell their properties to X and Y, respectively. Assuming requirements of notice are met, X can get an injunction against Y to stop a threatened demolition in violation of the restriction, even though Y may not have expressly agreed to honor the restrictions. By contrast, X could not sue Y for damages under a covenant-at-law theory, because of the lack of horizontal privity between A and B.)
C. "Touch and concern" still required: Neither the benefit nor the burden of a restrictive covenant will run unless it can be said to "touch and concern" the promisor’s land (in the case of a running burden) or the promisee’s land (in the case of a running benefit). But this requirement has little bite — courts are extremely loose in determining what kind of benefit or burden "touches and concerns" land.
1. Running of burden or benefit is in gross: Courts are in dispute about whether equity will enforce a burden where the benefit is in gross, just as they are in dispute about whether a suit at law for money damages may be awarded in this situation.
D. Notice to subsequent purchaser: The
most important thing to remember about equitable servitudes is that equity will not
enforce an agreement against a subsequent purchaser unless he had notice of
the restriction. Notice may be either "actual" or "constructive."
1. Actual notice: Thus if the subsequent purchaser of the burdened land happens to know about the restriction, it is irrelevant that the restriction is not recorded anywhere. (Example: A and B each agree in writing not to use their properties for anything but residential premises. Neither records this promise in the land records. B assigns to X, and orally tells X, "You should know that I have promised A that I’ll never use the property for non-residential purposes." A will be able to enjoin X from making non-residential use of the property, because X was on actual notice of the restriction at the time he bought.)
2. Recording: Also, the subsequent purchaser will be deemed to be on notice if he has "constructive" knowledge of the restriction. Most importantly, if the restriction is properly recorded in the land records, the purchaser is bound even if he does not discover the restriction by the time he buys.
E. Developer’s building plan: A general building plan formulated by a developer will often bind all parcels in the development. The developer records the plan in the form of a subdivision "plat" or map. To see how the burden and benefit can run to all parcels, assume that Developer (who has recorded a subdivision plat) conveys one parcel to B1 and, subsequently, another parcel to B2. Assume that the deed from Developer to each imposes the requirement that the buyer use the property in accordance with the recorded building plan (e.g., that he not use the property for non-residential uses if the building plan prohibits this).
1. Enforcement by subsequent purchaser: First, consider a suit by B2 against B1. Here, B2 can enjoin B1 against violating the use restrictions. This would probably be true even if the deed from Developer to B1 did not expressly mention the plan or the restrictions — the fact that the plan had been publicly filed would probably be enough to put B1 on notice.
2. Enforcement by prior purchaser against subsequent one: Now consider a suit by B1 against B2. This is trickier, because by hypothesis B1 received his property before the restriction against B2 even existed. Nonetheless, B1 can probably get an injunction against any violation by B2. Courts often do this by the doctrine of "implied reciprocal servitude" — when B1 acquired his land in expectation that he would get the benefit of subsequently-created servitudes, there was immediately created in him an implied reciprocal servitude against Developer’s remaining land (even if Developer did not put the restriction in later deeds, including the deed to B2!)
F. Selection of neighbors: Equitable restrictions (as well as covenants at law) may be used to facilitate the selection of neighbors. Such agreements will generally be enforced as long as they are reasonable in scope (so that they do not constitute an unreasonable "restraint on alienation") and are not in violation of any anti-discrimination law.
Example: Each deed executed by a developer provides that the purchaser must become a member of the homeowners’ association, and that the purchaser may not sell his land to anyone who is not a member of the association. It also provides that the association has the right of first refusal to buy any property offered by a member. Such a restriction will generally be enforced, and will give the association’s other members (providing that the association has enough money) the practical ability to keep property out of the hands of anyone deemed undesirable. Such a provision is often used by condominiums and co-ops.