Property
Professor Gilmore – Spring 2011
I. Private Land Use Controls: The Law of Servitudes
A. SERVITUDE
1. Definition – non-possessory interest in real property; the owner of a servitude has the right to use, or prevent the use of property that the servitude owner does not possess or own.
2. Types
a. Easements – an interest in real property that gives its owner a right of use over the property of another; can be transferred
b. Licenses – permission to do something that would otherwise be a trespass; can’t be transferred
i. Mere license – revocable at will even if it is paid for
ii. License coupled with an interest – irrevocable so long as its owner has an interest in the property (i.e. you can come to my house in the next 2 weeks to get your bike).
iii. Executed license – where there is a license and the licensee, in reasonable reliance on that license has made expenditures of capital or labor such that it would be unequitable for the license to be revoked
*If the right was created by deed – easement
*If the right was created by contract – license
*If a license is irrevocable, it is treated like an easement
c. Covenant (see below)
B. EASEMENT
1. Definition – an interest in real property that gives its owner a right of use over the property of another
2. Characteristics
a. Scope – use of the easement that was reasonably expected at the time the easement was created
b. Appurtenant or In Gross
i. Appurtenant – gives that right to whomever owns a parcel of land that the easement benefits; easement that benefits the owner as the owner of a particular parcel of real property
1. Dominant estate – estate that has the benefit of the easement
2. Servient estate – estate that is burdened by the easement
ii. In Gross – gives the right to some person w/o regard to ownership/benefits the person only and not a piece of property is benefitted
1. Servient estate – estate that is burdened by the easement
c. Affirmative or Negative
i. Affirmative – gives the right to enter or perform an act on the servient land
ii. Negative – easement for bidding one landowner from doing something
d. Specific or General
i. Specific – the use that the owner of a general easement may make of the land that is subject to the easement is limited to a specific part of that land
ii. General – the use that an owner of a specific easement may make of the land that is subject to the easement is not limited to a specific part of that land
e. Profit or Without Profit
i. Profit – right to come on and remove something from the land; right to remove
ii. W/o profit – nothing removed from the land (i.e. right to walk or watch birds)
3. Manner of Creation
Willard v. First Church of Christ: lady owned 2 lots and allowed church across the street to use it; she sold lot 1 and then ultimately lot 2 (parking lot) w/ language to still allow church to park there; new owner then sold lot 2 to someone else w/o the language. That owner sues. The church won b/c the new owner is responsible to know about the easement.
· This was an affirmative appurtenant easement without profit (not sure about specific or general) and was created by the original deed.
· Old rule – can’t transfer an easement in a 3rd party
· Modern rule – you c
Van Sandt v. Royser (p. 779) – owner of 3 lots created a sewer line through lots 1 & 2 for lot 3 where they lived, however this wasn’t an easement but rather a quasi easement. Owner sold the lot, is there still the easement? Yes
e. Prior existing use
1. Reasonably necessary for the enjoyment of the dominant estate, AND
2. Apparent, AND
3. Use is continuous, AND
4. All of the land was at one time owned by one person
5. Severed into 2 or more parcels owned by different owners
f. Necessity: *only types that can be created are Right of Way, ingress & egress; facts & circumstances have to be such that the parties intended & expected that there would be an easement
*To find scope you look to the necessity
1. Land in common ownership
2. Must be severed into 2 or more parcels w/ separate ownership
3. The severance creates the strict necessity (Right of way, ingress & egress).
g. Beach access
Raleigh Avenue Beach Assn. v. Atlantis Beach Club (p. 800) – wet sand owned by club but was opened to the public under the public trust doctrine
Public Trust Doctrine – the government owns certain lands & water for the use and enjoyment of all
· 4 Factors used when a private entity owns wet sand which are used to balance the public’s right to enjoy the ocean & wet sand w/ the private owner’s rights
