Lecture on Servitudes in American Property Law

Introduction to Servitudes

• Definition: A servitude is a legal device that creates a right to do something or control something on someone else's land.
• Example: Agreement between A (server) and B (property owner) for easier beach access.
  • A benefits; B bears the burden.
• Purpose: Servitudes are intended to transfer with land ownership, which is crucial for their definition.
  • Transferability is often referred to as "running with the land."

Types of Servitudes

• Historically, two major types: easements and covenants.
• Modern law recognizes five types of servitudes:
  1. Easement
  2. Profit
  3. License
  4. Real Covenant
  5. Equitable Servitude

Easements

• Definition: A right to use or prevent use on someone else's land.
• Characteristics:
  • Positive (Affirmative) or Negative
  • Involves one (in gross) or two (appurtenant) pieces of land
  • Personal or Commercial
• Transfer: Easements automatically transfer with land, except personal easements in gross (benefit does not transfer).
• Creation: Easements can be created by Grant, Prescription, Implication, Necessity.
• Termination: Mr. CAPEND (Merger, Release, Condemnation, Abandonment, Prescription, Estoppel, Necessity, Destruction).

Profit and License

• Profit: Similar to an affirmative easement but includes taking something from the land.
• License: Revocable right to use land; often created when easement formalities aren't met.

Covenants

• Definition: Promises related to land use; enforced by contract law, not property law.
• Can be positive (affirmative) or negative (restrictive).
• Termination: Mr. CAPACE (Merger, Release, Condemnation, Abandonment, Prescription, Agreement, Changed Conditions, Estoppel).
• Transferability: Requires showing specific elements depending on the type of covenant (real or equitable).

Real Covenant vs. Equitable Servitude

• Real Covenant (enforced at law): Requires WITVN (Writing, Intent, Touch & Concern, Horizontal Privity, Vertical Privity, Notice).
• Equitable Servitude (enforced in equity): Easier to transfer, elements are WITN; general scheme can substitute some elements.

Transfer of Covenants

• Importance: Knowing whether a covenant transfers affects its enforceability against new owners.
• Requirements:
  • Real Covenant: Burden (WITVN), Benefit (WITV)
  • Equitable Servitude: Burden (WITN), Benefit (WIT)
  • General Scheme Doctrine can apply for implied equitable servitudes.

Remedies

• Real Covenant: Either monetary damages or both monetary damages and an injunction.
• Equitable Servitude: Only an injunction.