Willard v. First Church of Christ, Scientist • McGuigan owns lot 19 and 20 • McGuigan sells lot 19 to Peterson • McGuigan sells lot 20 to Peterson with following: • “subject to an easement for automobile parking during church hours for the benefit of the church on the property at the southwest corner of the intersection of Hilton Way and Francisco Boulevard . . . such easement to run with the land only so long as property for whose benefit the easement is given is used for church purposes.” • Peterson sells lot 19 and 20 to Willard • Mentions church’s use, but specs. in deed for lot 20 • Easements by Writing
Easements – Characteristics • Affirmative or Negative • Affirmative – allows benefited to do something on burden land • Negative – prevents something from happening on burden land • Appurtenant or In Gross • Appurtenant – benefit tied to a benefited land • In Gross – benefit tied to individual • Dominant or Servient • Dominant – benefited land • Servient – burdened land
Holbrook v. Taylor • Concerns a roadway – 10 to 12 feet wide, 250 feet long • Holbrook’s buys burdened property in 1942 • Holbrook gives permission in 1944 to haul coal over roadway – gets royalty for use • Mine closes in 1949 • Taylor buys adjoining 3 acres in 1964 • decide to build house in 1965 • gets permission from Holbrook to use as haul road • house costs 25K • Taylor continues to use roadway to house • puts “red dog” down • makes improvements (widens it, adds culverts) • 1970 – Holbrook erects steel cable across roadway
Easements by Estoppel • Start with License • Written or Oral? • Explicit or Implicit? • Improvement • Of what? • Need reliance? • On what? • Consent • Explicit or Implicit? • How long should it last? • Worry about the lack of a writing? • Fair there is no payment?
Van Sandt v. Royster
Van Sandt v. Royster • Implied Easement • Start with a “quasi easement” • one part of land benefits other • relationship must be • apparent • continuous • necessary • Creation once dominant and servient parts split • Does this have to happen by conveyance? • Do I need common ownership? • Any difference if its a grant or a reservation? • reservation need strict necessity • How long does it last?
Van Sandt v. Royster • Implied Easement Under Restatement • For either implied easement approach, do we need notice for future owners? • If so what kind? • Did Bailey provide “merchantable title” when selling Lot 19 to Jones?
Othen v. Roiser
Othen v. Roiser
Othen v. Roiser
Othen v. Rosier • Easement by Necessity • unity of ownership initially and • necessity • at time of severance • How long does it last? • What is the difference between easement by necessity and easement by implication?
Easements by Prescription 1. Actual Entry Giving Exclusive Use that is 2. Open and Notorious, 3. Adverse and Under Claim of Right, and 4. Continuous for the Statutory Period • Theories to Disrupt Adversity (#3) • Lost Grant Theory • Interrupt or Stop Adverse Use
Brown v. Voss 1952 easement granted across parcel A for "ingress to and egress from" to parcel B
Negative Easements 1. Against blocking windows 2. Interfering with air flowing to your land in a defined channel 3. Removing lateral support 4. Interfering with the flow of an artificial stream
Covenants • Restrictive (Negative) v. Positive (Affirmative) • Restrictive – burdened promises to not act • Like a Negative Easement • Positive – burdened promises to act • A owner of Blackacre promises B, owner of Whiteacre, that Blackacre shall not be used for industrial purposes • Horizontal Privity • privity of estate between original covenanting parties
Covenants (cont’d) • B transfers Blackacre to C • Vertical Privity • privity of estate between one of the covenanting parties and a successor in interest • Is Either Privity Required for Covenant to Exist? • Horiztonal Privity 1 st Restatement – For Burden to Run • 3 rd Restatement – Not Required for Either •
Covenants (cont’d) • Vertical Privity 1 st Restatement: • • Burden – Must Succeed to Exact Same Estate (duration) • Benefit – Any Estate, But Still Must have Privity 3 rd Restatement: • • No Privity Required • Prob. 1 – p. 851
Tulk v. Moxhay • Tulk sells part of land to Elms • “that Elms, his heirs, and assigns should . . . keep and maintain the said piece of ground and square garden . . . in sufficient and proper repair . . . and that it should be lawful for the inhabitants of Leicester Square . . . on payment of reasonable rent for the same, to have keys at their expense and the privilege of admission . . . .” • Elms’s land eventually conveyed to Moxhay • Type of servitude(s)? • Privities? HP? VP? • Notice?
Equitable Servitude • A covenant enforced in equity • Requirements: • Notice • Intent • Touch and Concern • Vertical Privity only on benefit side • No horizontal privity requirement • Difference compared to covenants? • requirements (main one, no writing required) • available defenses • Modern move is to unify with covenants
Sanborn v. McLean • 1891 – McLaughlins own 91 lots, convey 10 of them with following language: • No residence shall be erected upon said premises, which shall cost less than $2,500 and nothing but residences shall be erected upon said premises. Said residences shall front Helene (now Collingwood) avenue and be placed no nearer than 20 feet from the front street line. • July 24, 1893 – McLaughlins convey 11 with language • Sept. 7, 1893 – Convey Lot 86 with no language • 1894-1910 – all conveyed: • 53 with express language, 38 without
Covenants -- Summary 1 st Restatement 3 rd Restatement Equitable Servitude Horizontal Privity For Burden None None to Run Required Required Vertical Privity Succeed to None For Benefit Same for Required to Run Burden, Any for Benefit Writing/Notice Writing Notice Writing Intent Needed Needed Needed Touch & Concern
Neponsit Property Owners ’ Assocs. v. Emigrant Indus. Savings Bank • 1917 – Neponsit conveys LOT to Deyer by deed containing following: • “ . . . the heirs, successors and assigns . . . shall be subject to an annual charge . . . not, however exceeding in any year the sum of four ($4.00) Dollars per lot 20x100 feet. . . . Such charge . . . shall be devoted to the maintenance of the roads, paths, parks, beach, sewers . . . .” • 1930 -- LOT sold to bank in judicial sale • Deed says subject to 1917 covenant • Bank refuses to pay; Association is assignee of Realty
Touch and Concern Requirement • English Rule: • Affirmative covenant DOES NOT T&C • Negative does T&C • New Test Formulated in Neponsit : • “Does the covenant impose, on the one hand, a burden upon an interest in land, which on the other hand increases the value of a different interest in the same or related land?” • “[I]t still remains true that whether a particular covenant is sufficiently connected with the use of land to run with the land, must be in many cases a question of degree”
Touch and Concern Requirement • 3 rd Restatement – Servitude “is valid unless it is illegal or unconstitutional or [in violation of] public policy.” These include: • (1) a servitude that is arbitrary, spiteful, or capricious; • (2) a servitude that unreasonably burdens a fundamental constitutional right; • (3) a servitude that imposes an unreasonable restraint on alienation under § 3.4 or § 3.5; • (4) a servitude that imposes an unreasonable restraint on trade or competition under § 3.6; • and (5) a servitude that is unconscionable under § 3.7.
Caullett v. Stanley Stillwell & Sons, Inc. • Stanley Stillwell sells 1 acre lot to Caullett for 4K • Deed includes following under the heading “covenants, agreements and restrictions,” to the effect that: • “(i) The grantors reserve the right to build or construct the original dwelling or building on said premises. . . . [This is] “covenants running with the land . . . [which] shall bind the purchasers, their heirs, executors, administrators and assigns.”
Caullett v. Stanley Stillwell & Sons, Inc. • Touch & Concern – 1 st Restatement • “[R]especting the use of the land,” that is “a use of identified land which is not merely casual and which is not merely an incident in the performance of the promise.” • Benefit in Gross
Covenants -- Summary 1 st Restatement 3 rd Restatement Equitable Servitude Horizontal Privity For Burden None None to Run Required Required Vertical Privity Succeed to None For Benefit Same for Required to Run Burden, Any for Benefit Writing/Notice Writing Notice Writing Intent Needed Needed Needed Touch & Concern Factors Needed* Caullett * * -- Other T&C Approaches – English Rule and Neponsit
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