A works as a server at a restaurant by the beach. During her lunch break, she likes to get a tan at the beach. A would really like to have an easier way to access the beach, so she asks B if she can cross through his property.
B says okay. From this agreement, we can conclude a couple of things. A has benefited from the agreement, and B is burdened by the agreement.
A has the benefit because she can enjoy accessing the beach more easily. B has the burden because, at least in some small way, he is now sharing his property with A. This simple interaction between A and B forms one of the most basic examples of what the law calls a servitude.
Not servers in the nude, servitude. While servers in the nude would have been a more interesting and alluring topic to learn about, we are instead faced with the most complex and archaic body of American property law remaining in the 20th century. It is a topic that confuses licensed attorneys, judges, and unfortunately, law professors.
This confusion is likely rooted in the poor understanding of the terminology and a lack of knowledge in the history. Since this lecture spends extra attention on explaining the terminology and providing the necessary history, you should have peace of mind and look forward to mastering the content of this lecture. In this lecture we will be referencing land instead of real property because it is more suitable for understanding the concepts. Thus there are two points to keep in mind. Land is real property except for that it doesn't technically include buildings or other structures like real property does.
And in this lecture, almost every time we refer to land we could substitute the term real property. We use the term land instead because it makes it easier to conceptualize. In general, a servitude involves a right.
A right to do something on someone else's land, or a right to control something on someone else's land. Here the right to do something literally means that the right holder can physically be on someone else's land, and the right to control something means that the right holder can either prevent something or force something on someone else's land. Normally when we define a new concept, the purpose is implied in the definition.
However, the purpose of a servitude extends past what the definition is. Servitudes are created with the intention that they will transfer with land ownership, because they are attached to the land or because they are attached to ownership of the land. Thus, transferability is part of the purpose. To reiterate for emphasis, servitudes are created with the intention that they will transfer.
Unfortunately, many students set in place the wrong framework by separating the concepts of what a servitude is and if a servitude can transfer. It seems the common mistake is that the focus is on what a servitude is, and then transferability is a potential afterthought. Servitudes must be learned and thought of jointly with transferability.
Thus, when analyzing a servitude, a well-prepared student will automatically be thinking about transferability. As you will probably remember from law school, the common phrase for referring to transferability is running with the land. However, in this lecture we will mostly be using the term transfer instead of running with the land because it avoids confusion. The law recognizes five types of servitudes.
However, traditionally there were only two types. While the law recognizes five types of servitudes, the The two traditional types are still considered the two major types for educational purposes. We begin this lecture with learning the major types first because they provide the proper framework for gaining a logical and lasting understanding of servitude law.
Since you just learned that a servitude is either the right to do something on someone else's land or the right to control something on someone else's land, you might be thinking that these two different rights make up the two major types of servitudes. But unfortunately, they do not. Instead, the first major type of servitude can be either a right to do something on someone else's land or a right to control something on someone else's land. The second major type of servitude only includes the right to control something on someone else's land.
At this point, most professors will reveal the names of the two major servitudes, however, it is better to completely understand the concepts first. Without a firm understanding of the concepts, the terminology can be very confusing. The best way to begin learning about the two major servitudes is to allow your mind to naturally begin to recognize the patterns of each type. Consider the following list of examples of how someone might be involved with a servitude.
Someone can cross someone else's land. Someone can lay some kind of utility across someone else's land. Someone can use a parking lot on someone else's land.
Someone cannot block the airflow. Someone must not block the scenic view. Someone must not block the light. Someone must not paint their house purple or some other weird color.
Someone can only paint their house white. Someone cannot use their land for a certain purpose. for example a commercial purpose, someone must only use their land for a certain purpose, for example for a religious purpose, someone must pay for maintenance, someone must not compete with the same type of store within five miles. Note, it is obvious to see that there is a difference in meaning between the words can and must.
The word can makes the servitude optional and the word must makes the servitude mandatory. However, there is one exception. If the word can is followed by the word only, then the word can does not make the servitude optional because together the words can only make the servitude mandatory thus can only is equivalent to must further the words cannot and must not have the same meaning thus in these examples the words can and must are not interchangeable The words can only and must are interchangeable, and the words cannot and must not are interchangeable. If you go through this list enough times, you will start to recognize a few patterns. Since in the beginning of this lecture we learned that a servitude involves a right to do something on someone else's land or a right to control something on someone else's land, you may notice that these first three examples represent the right to do something on someone else's land, and the rest of the examples represent the right to control something on someone else's land.
We had also learned that the right to control something means that the right holder can either prevent something or force something on someone else's land. For that reason, the examples which represent the right to control something on someone else's land are made up of either the right to force something or the right to prevent something on someone else's land. You may also notice that there are three examples which specifically represent the right to prevent something elemental from being blocked. Elemental does not refer to the vast number of chemical elements on the periodic table.
It represents a parallel to the classical elements of medieval history, i.e. fire, water, air, and earth. We will discuss in more detail what is meant by elemental later in this lecture. For now, it is enough to have a vague understanding of what something elemental could be.
From these patterns, we can determine the two major types of servitudes. The examples which represent the right to do something on someone else's land and the examples which represent the right to prevent something elemental from being blocked make up the first type of servitude, the easement. The remaining examples form the second major type of servitude, the covenant. Even more, From these patterns we learn that easements and covenants are either positive or negative.
Positive means to do something and negative means to prevent something. Thus every example which involves doing something, i.e. the right to do something or the right to force someone else to do something, is positive. And every example which involves preventing something is negative.
While it is technically correct to refer to an easement or covenant as being either positive or negative, popular convention has adopted a slightly different set of terminology. If an easement is positive then it is called an affirmative easement. If an easement is negative, the name stays the same and it is called a negative easement.
If a covenant is positive, then it is called an affirmative covenant. If a covenant is negative, then it is called a restrictive covenant. Before moving forward, let's take another moment to review and see again how someone might be involved with a servitude, this time with an animation. Someone can cross someone else's land.
Someone can lay some kind of utility across someone else's land. Someone can use a parking lot on someone else's land. Someone cannot block the airflow.
Someone must not block the scenic view. Someone must not block the light. Someone must not paint their house purple or some other weird color.
Someone can only paint their house white. Someone cannot use their land for a certain purpose, for example a commercial purpose. Someone must only use their land for a certain purpose, for example a religious purpose. Someone must pay for maintenance.
Someone must not compete with the same type of store within 5 miles. Here we can see that anytime someone can do something on someone else's land and anytime someone cannot block something elemental, for example light, airflow, or a scenic view, then we are dealing with an easement. Specifically, if someone can do something on someone else's land, then we are dealing with an affirmative easement. And if someone cannot block something elemental like light, airflow, or a scenic view, then we are dealing with a negative easement.
Anytime someone is required to do or not to do something on their own land, with the exception of blocking, we are dealing with a covenant. Specifically, if someone is required to do something on their own land, with the exception then we are dealing with an affirmative covenant. And if someone is required not to do something, with the exception of locking, then we are dealing with a restrictive covenant. Up until this point we have focused on the two major types of servitudes.
But remember, these two major servitudes only make up the traditional servitudes. Today the law recognizes five types of servitudes. These five types make servitude law extremely confusing because the names and designations are illogical.
Let's see why. As we already learned, servitudes are defined by their inclusion of a right to do something on someone else's land, or a right to control something on someone else's land, where the right to do something literally means that the right holder can physically be on someone else's land, and the right to control something means that the right holder can either prevent something or force something on someone else's land. Therefore, an easement is a servitude because an easement includes the right to use someone else's land or to prevent something on someone else's land. Therefore, a profit is a servitude because a profit includes the right to use someone else's land in order to take something from the land.
Therefore, a license is a servitude because even though it is a revocable right, a license includes the right to use someone else's land. Therefore, a covenant as it relates to land is a servitude because a covenant includes the right to prevent something or force something on someone else's land. Therefore, a real covenant is a servitude because a real covenant includes the right to prevent something or force something on someone else's land. Therefore, an equitable servitude is a servitude because an equitable servitude includes the right to prevent something or force something on someone else's land.
Thus it would seem that there are six types of servitudes. The existence of the real covenant and the equitable servitude are redundant and unnecessary. Their existence is not due to logic, but instead is due to history. In England, there were two court systems, courts of law and courts of equity. Each court system enforced the covenant differently and consequently found it necessary to classify the covenant as a different type of servitude.
Enforcing a covenant in a court of law created a real covenant, where the remedy was monetary damages and injunctive relief. And enforcing a covenant in a court of equity created an equitable servitude, where the remedy was only injunctive relief. Today, with a single court system, which has the power to provide whatever remedy is appropriate, the existence of the real covenant and the equitable servitude seems pointless, since they are just a covenant enforced in a certain way.
With no actual need for the real covenant and the equitable servitude, it seems that the appropriate classification should just be that of the covenant. However, the real covenant and the equitable servitude are still in use today, and as such they make up two types of servitudes. Thus, even though a covenant is technically a type of servitude, it is not officially included as a type of servitude because it is represented by the real covenant and the equitable servitude. Ultimately, this is why we don't have four types of servitudes, and instead we have five types of servitudes.
The easement, the profit, the license, the real covenant, and the equitable servitude. Where we should have the covenant, we have the real covenant and the equitable servitude. All of this gets especially confusing because real covenants and equitable servitudes are not created like any of the other servitudes.
The creation of an easement begins with an easement. The creation of a prophet begins with a prophet. The creation of a license begins with a license. But the creation of a real covenant and an equitable servitude begins with a covenant.
For example, a butterfly is unlike other insects because it does not begin its life as the same organism. Instead of beginning as a butterfly, it begins as a caterpillar and eventually transforms into a butterfly. Very similar to the butterfly, real covenants and equitable servitudes are not created in the true sense of the word. Instead, they transform out of a covenant.
Thus, later in this lecture, our detailed discussion of the real covenant and equitable servitude will require discussing the covenant. Before moving forward to discuss the details of what the Modern Law considers the five types of servitudes, let's quickly review what a servitude involves. A servitude involves a right to do something on someone else's land, or the right to control something on someone else's land.
Here, the right to do something literally means that the right holder can physically be on someone else's land, and the right to control something means that the right holder can either prevent something or force something on someone else's land. Remember that the purpose of a servitude is not just about a certain right. It is also about whether that certain right will transfer. The Easement An easement is an interest in land which includes the right to use someone else's land for a specific purpose or to prevent something on someone else's land for a specific purpose.
While it is an interest in land, it is not a right to possess the land. The specific purpose in using the land is typically to cross the land, for example crossing over a neighbor's land to access a public road. At some point in the discussion of easements you may feel overwhelmed by the terminology.
As a preview, it will be helpful to remember that easements always involve a burden and a benefit, and that every easement has three characteristics. The first characteristic is that an easement can either be positive or negative. The second characteristic is that an easement involves one or two pieces of land. And the third characteristic is that an easement can either be personal or commercial.
As we mentioned earlier, easements can either be positive or negative, where positive means to do something and negative means to prevent something. By popular convention, positive easements are called affirmative easements and negative easements stay the same and are called negative easements. Here is an example of an affirmative easement.
A and B are neighbors. A's land is next to the public street. B's land is behind A's land.
To access the public street, B must use a dirt road which takes 30 minutes. A gives B the right to cross over his land. B has an affirmative easement.
Further, note that B's land has the benefit and A's land has the burden. The Negative Easement Since negative means to prevent something, and since the name is negative easement, most students make the easy mistake of thinking that a negative easement is strictly the right to prevent something on someone else's land. However, this definition is specific to the Restrictive Covenant, which is another servitude that we will learn about later in this lecture. Thus, this mistake in the definition is also the main reason why so many students confuse the Negative Easement with the Restrictive Covenant. Since popular convention has left us with a name that is somewhat misleading, we have to know better.
Instead, the Negative Easement is a right to prevent someone from blocking something elemental on their land. The word elemental sounds odd, but it is simple because it represents only a few things. it does not refer to the vast number of chemical elements on the periodic table. Instead, it represents a parallel to the classical elements of medieval history, i.e. fire, water, air, and earth. Thus, something elemental would be lateral support, i.e. support from the ground which is necessary for a building to stand or to prevent land from caving in, air or airflow, light from the sun, and water.
Note, we refer to a man-made water source because water from a natural source is governed by water law, which is a completely separate topic of law. In addition, a growing minority of states include a scenic view as something that can be protected by a negative easement. Here is an example of a negative easement.
A and B are neighbors. A's land is next to a beach. B's land is behind A's land.
Thus B has a view of the beach as long as nothing new is built on A's land which would block the view. In order to ensure that B always has a view, A gives B the right to prevent any new building or structure from being built on A's land. This is a negative easement.
Further, note that B's land has the benefit and A's land has the burden. The examples that we have seen thus far have all involved two pieces of land, which is typical for an easement. The two pieces of land have some terminology associated with them. The piece of land which has the benefit of the easement is called the dominant land, and the piece of land which has the burden of the easement is called the servient land. To help remember these terms and what they mean, you can think of the servient land as having the burden of serving the benefit to the dominant land.
Easements may also have just one piece of land. For example, a train company has the right to cross through A's land. Thus, the train company has an easement.
If an easement involves only one piece of land, then it is considered an easement in gross. And if an easement involves two pieces of land, then it is considered an easement appurtenant. Let's take a look at a few more examples of each.
In the train example that we just saw, the train company had an easement in gross. Further analysis shows us that the train company has the benefit and A's land has the burden. Thus A's land is considered servient land because it has the burden of serving the benefit to the train company.
Note, in this example you may have recognized the easement to also be an affirmative easement. and thus you may be wondering why it isn't referred to as an affirmative easement in gross. While it would be technically correct to refer to this last example as an affirmative easement in gross, the law tends to discuss easements in its parts and not in its whole. While every easement has at least three characteristics, in practice it is almost always more effective to refer to an easement as an easement instead of, for example, as a commercial affirmative easement in gross. Let's look at another easement in gross example.
A power company has an easement in gross across A's land. The power company has the benefit and A's land has the burden. Thus A's land is considered servient land because it has the burden of serving the benefit to the power company.
These last two examples have involved a company, but easements and gross don't have to be commercial. They can also be personal where they are intended for personal enjoyment rather than for economic benefit. Here is an example.
A was interested in buying a particular home which had a lake. The owner, who just happened to be a gorgeous supermodel, agreed to sell her property but explained that her sister had an easement and gross to use the lake. A happily bought the property, especially since he thought that the supermodel's sister would be equally as beautiful.
As it turned out, the sister was actually a horrendously gross person. Thus, this gross person got the benefit, and A's land got the burden. In other words, A's land is considered servient land because it has the burden of serving the benefit to the gross person. Before looking at a couple of examples of easements impertinent, i.e. easements which involve two pieces of land, it is important to note that we have already become familiar with easements which involve two pieces of land. Thus the concept is not new, but the term appurtenant is new.
For good practice, let's review a couple of examples of the easement appurtenant. A and B are neighbors. A's land is next to a public street.
B's land is behind A's land. To access the public street, B must use a dirt road which takes 30 minutes. A gives B the right to cross over his land. Thus B has an easement appurtenant because two pieces of land are involved, the servient land and the dominant land.
To help remember why this is, remember that A's land has the burden of being a burden and B's land has the benefit, and thus A's land is considered servient land because it has the burden of serving the benefit to B's dominant land. C and D are also neighbors. D's land is behind C's land. The only way for C to connect to the power utility lines is through D's land. C obtains the right to have the power utility lines cross through D's land.
Thus C has an easement of pertinent because two pieces of land are involved, the servient land and the dominant land. Further analysis shows that D's land is considered Servient Land because it has the burden of serving the benefit to C's land, and by having the benefit, C's land is the dominant land. After reviewing these examples, you will have noticed that easements always involve Servient Land.
The transfer of an easement is generally easy because an easement automatically transfers with the land. This is because easements attach to the land instead of attaching to the landowners. Thus, when a landowner sells his land, the easement stays attached to the land and waits for the new landowner. However, there are two exceptions.
When an easement in gross is personal, only half of the easement transfers. The burden transfers but the benefit does not. This means that if the servient landowner sells his land, then the new buyer is the new servient landowner, because the burden remained attached to the land. However, the right holder i.e. the person who has the benefit cannot transfer their right.
This makes sense because the benefit is not attached to the land. In addition, there is an exception for a bona fide purchaser. As it is for all easements, if the new owner of the servient land did not have notice of the easement, the easement will not transfer.
For review of the Bonafide Purchaser, please see the video lecture on the recording system at minute 446. To reiterate how easements transfer, all easements automatically transfer except for the benefit of a personal easement in gross and the burden to a bona fide purchaser. Before learning how an easement can be created, let's have a quick review on the three characteristics of an easement. Remember, for each of the three characteristics, there are two options. Thus, an easement will either be affirmative or negative, in gross or pertinent, and personal or commercial.
Since the creation of an interest in land is required to be in writing by the statute of frauds, easements are normally created by a grant, where a grant is a written document which conveys an interest in land. Specifically, negative easements can only be created by a grant, but affirmative easements have a few other ways in which they can arise. In total, an affirmative easement can be created in four ways prescription, implication, necessity, and grant. The acronym PING is helpful in remembering each of the four ways because there are four quadrants on a ping-pong table.
To create an affirmative easement by prescription, the elements of adverse possession are required. Since the elements of adverse possession are required, you may find the word prescription to be unfitting and you may be wondering why the law doesn't refer to this type of creation as creating an affirmative easement by adverse possession, instead of by prescription. Unfortunately, there is only a boring technical reason why the term prescription is used instead of adverse possession. Adverse possession has to do with the entire title to land, which of course includes the right to possession.
Since an easement has to do with using land for a specific purpose, it is only a right to use. Thus, using the name adverse possession is inappropriate where the right to possession is not included. And therefore, the requirements of creating an easement by prescription are the same as adverse possession, but the name prescription is used. If you remember from the video lecture on adverse possession, our friend named Chow embodies the elements of adverse possession. Chow continuously uses the land for the statutory period.
Chow is hostile because he does not have consent. Chow's use is actual and exclusive because he literally uses the land and the owner does not. Chow's use is open and notorious because the owner can observe his trespassing. For a review on adverse possession, please see the video lecture on adverse possession. The following examples show how an affirmative easement can be created by implication, necessity, and grant.
Here is an example of creating an easement by implication. i.e. an implied easement. A owns two lots. He builds one main house on the large lot and a guest house on the smaller lot.
He constructs one sewer pipe for both homes which runs underneath the front yard of the main house. A decides to sell his two properties to B and C, but he forgets to include that B's house has an easement to use the sewer pipe which runs underneath C's front yard. C does not want B to use the sewer pipe.
However, an easement will be created by implication if B can show that there was an apparent previous use The original owner expected the use to continue, and the use is reasonably necessary. Where reasonably necessary means that the other options would be substantially more expensive. Here is an example of creating an easement by necessity. Picking up where we left off in this last example, imagine now that C decides to sell part of his land to D. If the only way to access D's land is through C's land, then D's land will be considered land law.
If for some reason C does not grant D an easement over his land, then an easement by necessity will be created. Specifically, an easement by necessity is only created if there was once common ownership of the dominant and servient land and if the easement is strictly necessary. Strict necessity means that the easement is absolutely necessary for the reasonable use and enjoyment of the land.
Note, necessity and implication are similar ways to create an easement, which makes them confusing. They are especially confusing because an easement by necessity is technically a certain type of implied easement. The important distinction to remember is that the easement by implication requires only reasonable necessity and the easement by necessity requires strict necessity. Lastly, the most common and straightforward way that an affirmative easement is created is by grant, where a grant is a written document which conveys an interest in land. The actual document is called an easement deed.
Thus, an affirmative easement can be created by ping, prescription, implication, necessity, and grant. and a negative easement can only be created by grant. As a general rule, easements come to an end when they no longer have a purpose. However, it is important to be able to recognize the common ways that an easement can terminate, and Mr. CAPEND will help you remember all the different ways.
Mr. CAPEND stands for merger, release, condemnation, abandonment, prescription, estoppel, necessity, and destruction. Merger is when one owner gains title to both the dominant and servient land. In other words, merger is when one owner buys or inherits the neighboring land.
Release is when the dominant landowner gives written termination of the easement to the servient landowner. Condemnation, also known as a government taking, is when the government uses its power of eminent domain to take the servient land, i.e. the burdened land. By taking the servient land, the easement is terminated. Abandonment is when the dominant landowner's physical action demonstrates intent to discontinue the easement.
Prescription is when the servient landowner reclaims the easement by satisfying the elements of adverse possession. Remember from earlier in this lecture and from the video lecture on adverse possession, our friend named Chow embodies the elements of adverse possession. Thus, as it pertains to termination of an easement, Chow is the servient landowner. And therefore, Chow continuously uses, for the statutory period, the land which corresponds to the easement. Chow is hostile because he does not have consent from the dominant landowner.
Chow's use is actual and exclusive because he literally uses the land and the dominant landowner does not. Chow's use is open and notorious because the dominant landowner can observe his use. Estoppel is when the dominant landowner gives an assurance to the servient landowner that the easement will no longer be used, whereby the servient landowner reasonably relies on that assurance and therefore materially changes his position.
If an easement was created by necessity, then the easement ends when the need ends. Destruction of the servient land ends an easement if the use of the easement is no longer possible. As a side note, termination of an easement by estoppel is similar to termination of an easement by abandonment and termination of an easement by release they are similar because they all require something more than spoken words abandonment requires a physical act release is required to be in writing and estoppel requires reasonable reliance which causes a material change of position profia pondra or profit for short is the same as an affirmative easement except that it adds the right to take something from the land, i.e. hunting, fishing, or removal of other natural resources.
Thus, a profit is an interest in land which includes the right to use someone else's land in order to take something from the land. A license is effectively the same as an affirmative easement except that it is revocable. Thus, a license is a revocable right to use someone else's land for a specific purpose. And to say it another common way, a license is permission to use someone else's land for a specific purpose. Licenses are typically created in two situations.
Ticket sales at an event, and when easements fail because they were not in writing. Let's look at an example of each. Imagine a movie theater where people are waiting for the movie to begin.
For some reason, the manager walks up to one of the patrons and asks him to leave. While this may seem unfair, the patron must leave, because the ticket is only a license. And as you already know, a license is revocable at any time. The patron is not at a total loss. Where property law provides the manager with the power to make the patron leave, contract law provides the patron with the power to sue for a breach of contract.
Now let's take a look at an example where a license is created because an easement was not in writing. Two neighbors, A and B, are having a conversation by the fence between their two properties. A tells B that he can come across his land in order to access the lake. A's words sound like they give B an easement, but as we learned in the previous section on easements, verbal promises are not enforceable because of the statute of frauds. Thus, A has only given B a license, a license which A can take back from B at any time.
There is one exception which may prevent a license from being revoked. If the holder of the right reasonably relies on the continuation of the license by investing money or labor, then the license may not be revocable and instead may be enforced. This is the rule of estoppel. Further, if estoppel prevents a license from being revoked, then the license may be transformed into an easement. At this point, we have discussed three of the five types of servitudes, the easement, the profit, and the license.
Thus, we have two more servitudes to cover. These last two servitudes are nearly identical. They are both based on a covenant and one is the variation of the other.
In fact, the American Law Institute does not distinguish between the two and instead considers them to be one type of servitude. These last two servitudes are the real covenant and the equitable servitude, where the equitable servitude is a variation of the real covenant. While it would be easier and more logical to learn only about one more type of servitude called the covenant, it is necessary to split the covenant into two servitudes, the real covenant and the equitable servitude, as a requirement for understanding today's law.
The Covenant Since the real covenant is a covenant enforced at law and the equitable servitude is a covenant enforced at equity, we will begin by discussing the covenant. A covenant is a promise. As a promise, the covenant is typically found in a contract or a deed, also known as the title or a title to property. In this lecture we are focusing on a particular kind of covenant, which is a promise related to land.
Covenants closely resemble easements, but they are different. While they both have to do with rights related to land, they do not come from the same body of law. Easements come from property law, and covenants come from contract law. This difference becomes more obvious when we compare them. an easement is an interest in land and a covenant is a promise related to land thus the easement has to do with ownership and the covenant does not therefore when someone is enforcing an easement they are enforcing a right which gets its power from actually owning something i e property law and when someone is enforcing a covenant they are enforcing a right which gets its power from a promise i.e., contract law.
Just like easements, covenants involve a burden and a benefit. And just like easements, covenants can be positive or negative, where positive means to do something and negative means to prevent something. A positive covenant is called an affirmative covenant, and a negative covenant is called a restrictive covenant. Examples of an affirmative covenant are a promise to only paint the house white, a promise to only use the land for religious purposes, a promise to pay for maintenance. Examples of restrictive covenants are a promise not to paint the house purple or some other weird color a promise not to open a commercial store a promise not to compete with the same type of store within five miles termination just as you learned how an easement can terminate with mr cap end mr cap ace will help you remember all the different ways that a covenant can end mr cap a stands for merger release condemnation abandonment prescription agreement changed conditions and estoppel Mr. Capend and Mr. Capace are the same except for the last two elements of Mr. Capend.
Necessity and destruction are replaced by the elements agreement and change conditions in Mr. Capace. Merger is when one owner gains title to both pieces of land affected by the covenant. In other words, merger is when one owner buys or inherits the other land affected by the covenant.
Release is when the owner who benefits from the covenant gives written termination of his right to benefit to the owner who is burdened by the covenant. Condemnation, also known as a government taking, is when the government uses its power of eminent domain to take the land which belongs to the owner who is burdened by the covenant by taking the land the covenant is terminated abandonment is when the owner who benefits from the covenant takes physical action which demonstrates the intent to discontinue the covenant prescription is when the owner who is burdened by the covenant terminates the covenant by satisfying the elements of adverse possession remember from earlier in this lecture and from the video lecture on adverse possession our friend named chowne bodies the elements of adverse possession thus as it pertains to termination of a covenant Chow is the owner who is burdened by the covenant. And therefore, Chow continuously uses, for the statutory period, his land in violation of the covenant.
Chow is hostile because he does not have consent from the owner who benefits from the covenant. Chow's use is actual and exclusive because he literally uses his land in violation of the covenant. Chow's use is open and notorious because the owner who benefits from the covenant can observe his use.
Agreement. The parties bound by the covenant can always agree to end the covenant, or can negotiate to end the covenant. Changed Conditions.
A covenant is unenforceable if circumstances have changed so drastically that the covenant no longer provides a benefit. Some examples of change that might render a covenant obsolete are new development, new zoning laws, non-enforcement. Estoppel is when the owner who benefits from the covenant gives an assurance of terminating the covenant to the owner who is burdened by the covenant, whereby the owner who is burdened by the covenant reasonably relies on the assurance and therefore materially changes his position. The discussion of how a covenant transfers requires a discussion on how a covenant is enforced. This is because when we are analyzing whether a covenant transfers, we are actually analyzing whether the covenant will be enforceable against a new owner.
A covenant can be enforced in two ways. As with other court remedies, a covenant can be enforced with a legal remedy, and it can be enforced with an equitable remedy. The legal remedy includes monetary damages or monetary damages and an injunction, and the equitable remedy includes only an injunction.
This is where covenants get a little confusing. If the covenant is enforced at law, i e if the covenant is enforced with a legal remedy then the covenant is considered a certain type of servitude called the real covenant however if the covenant is enforced with equity i e if the covenant is enforced with an equitable remedy then the covenant is considered a certain type of servitude called the equitable servitude the reason for this as we mentioned in the beginning of this lecture is because the law of servitudes was created in england at the time when the law of servitudes was created england had two different court systems a court of law and a court of equity if a covenant was enforced in the court of law then the covenant was considered a real covenant. However, the court of equity felt the need to create an entirely new type of servitude, the equitable servitude. Thus, if a covenant was enforced in the court of equity, then it was enforced as a new type of servitude called the equitable servitude. Even though our American court system provides both legal and equitable remedies, it has unfortunately adopted the same framework for servitudes and thus the real covenant and the equitable servitude continue to exist.
Note, even though a covenant by itself is technically a type of servitude, It is not officially included as a type of servitude because it is already represented by the real covenant and the equitable servitude. Remember, this is why we don't have four types of servitudes, and instead we have five types of servitudes. Where we should have the covenant, we have the real covenant and the equitable servitude. By learning how a covenant can be enforced, we have now learned the basics of how it can transfer, because transferability just has to do with whether the covenant will be enforceable against the new owner. Thus, a covenant can be transferred as a real covenant or as an equitable servitude.
Before learning the difference between the two, we need to cover a bit more framework. Earlier we saw that transferring an easement was easy. It was easy because the transfer wasn't dependent on anything. The transfer wasn't dependent on anything because easements attached to the land and not the party, i.e. the landowners.
thus when any of the parties change the easement stays attached to the land and waits for the new party but covenants are not attached to the land so when a party changes the covenant may not transfer a covenant will transfer if certain requirements are met and the requirements depend on which party changes note we are now using the term party instead of landowner in order to further emphasize that covenants do not attach to the land use of the term landowner is still appropriate However, the important distinction of how an easement attaches and how a covenant attaches is better learned and remembered if the term landowner is not used, since it contains the word land. As we mentioned earlier, and just like easements, a covenant involves a burden and a benefit, where one party has the burden and one party has the benefit. Thus, when we are talking about a covenant transferring, we could be talking about the burden transferring, or we could be talking about the benefit transferring, or we could be talking about both the burden and the benefit transferring. To know which one we are talking about only requires knowing which parties are involved. the party with the burden the party with the benefit or both this is why it matters which party is changing because by knowing which party is changing you can know whether the burden the benefit or both are affected and by knowing which one is affected you will know which requirements are necessary for the covenant to transfer let's take a look at three examples which will show each way that a covenant will transfer a has two pieces of land which are adjacent to each other a agrees to sell one of the pieces of land to b if b promises that he will not use the land for commercial purposes A has the benefit of the covenant and B has the burden of the covenant.
Now B sells to C. C wants to build a commercial store. For the covenant to transfer, the burden must transfer. Now imagine the initial scenario except that instead of B selling to C, A sells to D, and instead B wants to build a commercial store. For the covenant to transfer, the benefit must transfer.
And now finally, imagine the initial scenario except this time A sells to D, B sells to C, and C wants to build a commercial store. For the covenant to transfer, the burden and the benefit must transfer. After reviewing how a covenant can transfer, it is important for practical reasons to remember which party has the task of proving that a covenant can transfer. The task always belongs to the party who has the benefit.
This makes sense because the party which has the burden has nothing to gain by the covenant being enforced, and the party which has the benefit will lose his benefit if the covenant is not enforced. By remembering which party has the benefit, it will allow you to know what is required for the covenant to transfer. As it pertains to the previous examples, If A wants to enforce his benefit of the covenant against C, he must show that the burden transfers. If D wants to enforce his benefit of the covenant against B, he must show that the benefit transfers. If D wants to enforce his benefit of the covenant against C, he must show that both the burden and the benefit transfer.
Now that we have learned the framework of how a covenant can transfer, let's focus on how a covenant can transfer as a real covenant. We will begin our discussion on what the requirements are for the burden to transfer and what the requirements are for the benefit to transfer. In order to do this, let's revisit the above examples. A has two pieces of land, which are adjacent to each other.
A agrees to sell one of the pieces of land to B if B promises that he will not use the land for commercial purposes. A has the benefit of the covenant and B has the burden of the covenant. Now B sells to C. C wants to build a commercial store. If A wants to enforce his benefit of the covenant against C, he must show that the burden transfers.
For a burden to transfer, certain elements are required. These elements are represented by the acronym WITHVN, which stands for writing, intent, touch and concern, horizontal privity, vertical privity, and notice. Thus, the covenant must be in writing.
This means that the original promise is in writing. The intent of the original parties was for the covenant to transfer. This means that the original parties expected future owners to be bound by the covenant. The covenant must touch and concern the land. This means that the existence of the covenant affects the use and enjoyment of the land.
The covenant must have horizontal privity, which means that the burdened land had to have been transferred between the original parties. The transfer did not have to be the entire estate to satisfy horizontal privity. An interest as small as a leasehold estate was enough.
In other words, horizontal privity is satisfied where the burdened land was first owned by one of the original parties, and then transferred to the other original party. And, horizontal privity is satisfied where the burdened land was simultaneously owned by the original parties where the original parties were the landlord and the tenant. Thus, being neighbors is not enough to create horizontal privity. The covenant must have vertical privity, which means that the previous owner voluntarily transferred his land to the new owner.
In other words, vertical privity will be satisfied as long as the transfer is voluntary, i.e. any contract, devise, or dissent will work. Thus, adverse possession will not work to satisfy vertical privity because adverse possession requires the element of hostility, also known as no consent, which makes the transfer involuntary. The covenant must have notice.
There are three types of notice. actual inquiry and record actual notice is when the new owner actually knows about the covenant for example the covenant is included in the deed Inquiry notice is when the new owner did not actually know about the covenant, but should have made a reasonable inquiry to discover it. This is the situation when the given circumstances would compel a reasonable person to investigate further. Record notice is when the new owner is considered to have known about the covenant because the covenant was properly recorded. In other words, the new owner is on notice because a proper recording makes the covenant a public document that can be searched and found by anyone.
Inquiry notice and record notice are forms of constructive notice. Constructive notice is something that the law considers someone to know. even if they do not actually know.
Thus, if these elements with the N are shown, then the burden will transfer. Now imagine the initial scenario except that instead of B selling to C, A sells to D, and instead B wants to build a commercial store. If D wants to enforce his benefit of the covenant against B, he must show that the benefit transfers. For a benefit to transfer, a subset of the elements for the burden to transfer are required. These elements are represented by the acronym WITV, which stands for Writing, Intent, touch and concern and vertical privity thus the covenant must be in writing this means that the original promise is in writing the intent of the original parties must be for the covenant to transfer this means that the original parties expected future owners to be bound by the covenant the covenant must touch and concern the land this means that the existence of the covenant affects the use and enjoyment of the land the covenant must have vertical privity which means that the previous owner voluntarily transferred his land to the new owner in other words Vertical privity will be satisfied as long as the transfer is voluntary, i.e. any contract, devise, or dissent will work.
Thus, adverse possession will not work to satisfy vertical privity, because adverse possession requires the element of hostility, also known as no consent, which makes the transfer involuntary. Thus, these elements, WIPV, are shown the benefit will transfer. And now finally, imagine the initial scenario except that this time A sells to D, B sells to C, and C wants to build a commercial store. If D wants to enforce his benefit of the covenant against C, he must show that both the burden and the benefit transfer.
Since the requirements to show that a burden transfers, with VN, deceivingly include the requirements to show that the benefit transfers, with V, some students make the mistake of only analyzing the burden transfer requirements. This is a mistake. While W, I, and T are the same, vertical privity is different for a burden to transfer than for a benefit to transfer.
Thus, it is important to remember that vertical privity must be shown in two ways, between A and D, and between B and C. Thus, if these elements, WITVN and WITV, are shown, then the burden and the benefit will transfer. Sometimes it is difficult to prove the elements of privity in order for a covenant to transfer as a real covenant. The horizontal privity element is especially difficult to prove.
If the covenant will not transfer as a real covenant because a privity element is missing, the covenant may still be able to transfer as an equitable servitude. It is easier for a covenant to transfer as an equitable servitude because there are less elements to show. You only have to show WITN, for the burden to transfer, and WIT. for the benefits transfer. As this lecture transitions from real covenants to equitable servitudes, let's review some concepts and terminology.
Remember that the question of whether a covenant transfers is the same as the question of whether the covenant can be enforced against a new owner. Thus, when a covenant transfers as a real covenant, it is referred to as a covenant being enforced at law. However, when a covenant transfers as an equitable servitude, it is referred to as a covenant being enforced at equity.
As a reminder, it is important not to confuse the term servitude with the term equitable servitude. A servitude is an umbrella term which is the topic of this lecture. The different types of servitudes are the easement, the profit, the license, the real covenant, and the equitable servitude. Thus, an equitable servitude is just a type of servitude. The equitable servitude is the same as the real covenant, except that it involves a different remedy.
The real covenant has two remedy options. Monetary damages, or it can be, and usually is, both monetary damages and an injunction. The equitable servitude has only one remedy, which is an injunction.
Many legal authorities do a poor job of explaining the difference in remedies because they explain the difference as the real covenant having one remedy and the equitable servitude as having another. This is why many students make the mistake of thinking that the remedy for a real covenant is only monetary damages. While the only remedy for an equitable servitude is an injunction, the real covenant has two remedies, either monetary damages or monetary damages and an injunction.
As we already mentioned, a covenant will transfer as an equitable servitude if certain elements are met. The elements for the burden to transfer are WITN, which as we learned earlier, stands for writing, intent, touch and concern, and notice. The elements for the benefit to transfer are WIT.
Further, the burden may have another way to transfer if any of the elements, writing, intent, and touch and concern are missing. For one specific situation, the purpose of these three elements can be fulfilled by the general scheme doctrine. If the covenant applies to other neighboring properties in addition to the owner with the burden, then the covenant can be implied as an implied equitable servitude therefore an implied equitable servitude requires a general scheme and notice a general scheme is when a developer builds a neighborhood or other real estate development with each property having the same physical characteristics Thus, the covenant affects more than one property. As we already learned, there are three types of notice.
Actual, inquiry, and record. Actual notice is when the new owner actually knows about the covenant. For example, the covenant is included in the deed. Inquiry notice is when the new owner did not actually know about the covenant but should have made a reasonable inquiry to discover it. Specifically, the physical uniformity of the neighboring land would compel a reasonable person to make further inquiry and discover the covenant.
Record notice is when the new owner is considered to have known about the covenant because the covenant was properly recorded. In other words, the new owner is on notice because a proper recording makes the covenant a public document that can be searched and found by anyone.