Intro. to Planning Law#8

8/8/2019 Intro. to Planning Law#8

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Introduction to Law

Easements & Covenants

Unit # 8


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Nature of Easements & Profits

Easements and profits present different facetsfrom different angles. They are rights orinterests in land.

A burden an encumberance- upon anothersland.

Easements allow some use to be made of theburdened land, while profits allow somesubstance to be severed or removed.


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Easement and profits are to be distinguishedfrom licenses.


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Appurtenant and in Gross

Appurtenant benefits serve a parcel of land.It serves the owner of that land in a way thatcannot be separated from rights in the land.

Examples Walkways Driveways Utility lines


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Creation by Express Act

Instruments creating are called agreements The grantor of a parcel of land wishes to have

an easement or profit upon it after theconveyance, usually when he retains title toan adjoining parcel.

A grantor may not reserve an easement orprofit in favor of a third person.


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Implied from Prior Use

Implication of an easement arises out of apattern of circumstances surrounding theconveyance.


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Elements 1. A conveyance 2. Of a physical part only of a grantors land 3. Before the conveyance there was a usage on

the land that, had the two parts then beensevered, could have been the subject of aneasement appurtenant to one and servient uponthe other.

4. Usage is more or less necessary to the use of the part to which it would be appurtenant.

5. The usage is apparent.


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Reasonable necessity the continued usagewill be convenient to enjoyment of thedominent tenement.

Pre-existing use must be apparent so thatcontinuance can be within the grantors andgrantees contemplation.


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Implied from Necessity

1. A conveyance 2. A physical part only of the grantors land

(hence, he retains part, usually adjoining thepart conveyed)

3. After severance of the two parcels, it isnecessary to pass over one of them to reachany public street or road from the other.


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The essential difference between the two typesof easements is that with prior use, a pre-existinguse had to be present, no such requirement for by

neccissity.


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Easement Implied from Plat

A purchaser who acquires a lot in a plattedsubdivision will, to an extent, acquire impliedprivate easements to use streets and alleys andperhaps parks and playgrounds shown on the plat.


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Easement by Prescription

Use of anothers land that must be: Actual Open Notorious Hostile Continuous Exclusive


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Creation by Estoppel or Part Performance

A person may be unconditionally entitled to theuse of land through an oral agreement followedby certain types of conduct.

The oral grantor represented to the grantee thathe had an easement or profit upon the grantorsland; in reliance upon the representation, thegrantee expended money or labor or madeimprovements upon or with reference to theeasement or profit detrimental reliance; andtherefore, the grantor became estopped to denythe easement or profit.


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Transfer of Easement and Profits

The word appurtenant signifies that aneasement appurtenant is attached to and apart of the right of possession of its dominant

tenement. Use of the easement is one of theincidents of ownership of the dominanttenement, though of course this incident isenjoyed upon land. Therefore, any act that issufficient to transfer title or even rightfulpossession of the dominant tenement willcarry the easement rights with it.


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Termination

By the holders express release to the ownerof the servient tenement.

Duration may be limited by implication as wellas by express language.

By destruction of a structure on the servienttenement in which they exist.

By abandonment requiring two elements A cessation of use Intent to relinquish


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Covenants

An agreement between two persons andsometimes a promise contained in such anagreement.

A promise by one person to another to do orto refrain from doing something, whichpromise the covenantee may enforce at lawagainst the covenantor.


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Two Types

Real Covenants covenants running at law Equitable restrictions equitable servitudes


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Real Covenants

To be enforceable by or against a remote party, itmust have been enforceable between thecovenanting parties.

Proprietary interests in land are the total bundleof rights that the holder enjoys. One whorestricts his previously enjoyed rights bycovenanting not to exercise some of them (for

instances, by covenanting not to erect certainkinds of structures) has certainly diminishes hisquantum of ownership in his land.


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Must Touch & Concern

Unless a covenant benefits touches andconcerns some estate in land, the benefitcannot run to the covenantees grantee.Similarly, unless the burden touches andconcerns some estate in land, the burdencannot run.


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Examples

Touch and concern is a concept one callingfor the doing of a physical thing to land.

Covenants to pay real estate taxes andassessments touch and concern.

The covenant to pay rent touches andconcerns.

Restriction on the use of land.


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Intent to Bind Successors

Covenanting parties intent that the covenantshall run.

Intent is to be found from all thecircumstances surrounding the land.


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Termination

A real covenant may end at a fixed time if theparties creating it so intend.

A change of neighborhood.


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Change of Neighborhood Doctrine The change must be physical and substantial and,

of course, must have produced a use of landcontrary to the restrictions of the covenant.Change must affect the general vicinity and notmerely a few parcels.

Such a change as has caused the restriction tobecome outmoded and to have lost itsusefulness, so that it benefits have already been

substantially lost. The change must be such as would make it

inequitable to enforce the restriction.


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In Subdivisions

Implied reciprocal servitude- the execution,delivery, and acceptance of that deed,whether it is signed by the grantor andgrantee or by the grantor alone, will imposereciprocal benefits and burdens enforceablebetween the original parties against their

respective lands.


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Third Part Beneficiary Theory

A grantee who makes the covenant intends itfor the benefit of all owners, previous orsubsequent, who acquire lots within the areacovered by the common plan.

Documents

Intro. to Planning Law#8