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Property II
University of Iowa School of Law
Hovenkamp, Herbert J.

I.                   SERVITUDES
A.      EASEMENTS à A nonpossessory interest in another person’s land which entitles the holder to some form of enjoyment in or use of the land
Can be created by (1) express grants (2) implication: necessity or quasi-easement (3) prescriptive rights (4) estoppel.
1.       Dominant Estateà land which is entitled to the servitude.
2.       Servient Estateà land which is burdened by the servitude.
3.       Recording Actsà arise because of the information costs of searching a title. Recording acts change the CL and provide an incentive to record.
a.        At CL 1st in time, 1st in right. If one had an equitable interest and the subsequent purchaser had legal title, then à if subsequent purchaser of legal interest was a BFP, then the BFP would prevail. A BFP didn’t have notice. 
b.       Ps are estopped from maintaining an action by reason of the covenants contained in the deed to the prior purchaser of the lot who subsequently conveyed the property to Ps. This deed barred Ps right to maintain an action against the Town for operating a garbage dump. Waldrop v. Town of Brevard
c.        Race Statute à 1st to record, no BFP requirement. Whoever records first, wins. It is a race to the county office to record.
d.       Notice Statute à subsequent purchaser is preferred over prior puchaser if the prior purchaser didn’t record and the subsequent purchaser is innocent. BFP requirement for the subsequent purchaser. 1st to record unless prior notice. IOWA has a notice statute.
e.        Race-Notice Statute à subsequent innocent purchaser + have to record first. 
f.        Iowaà must look for inchoate dower in Iowa. Married person cannot convey even if owned by 1 person, without the signature of their spouse.
4.       Easements by Express Grant, Reservation in a Deed, or Other Form of Agreement
a.        Grantor can in deeding property to one person, effectively reserve an interest in the property to another under the modern approach which focuses on the intent of the grantor. Willard v. First Church of Christ, Scientist, Pacifica
(i)       CL Rule à rejected a reservation of an interest in favor of a third party to the title.
(ii)     Court applies a balancing approach of equitable and policy considerations finding that the lot wouldn’t have been sold if the Church was not allowed to continuing using the lot for parking.
(iii)    Primary objective in construing a conveyance is to try and give effect to the intent of the grantor in the modern approach.
5.       Irrevocable License
a.        The license granted to Ds to use the private road is irrevocable because D conferred benefits to Ps, such as the grant of easements to the sewer and water board that provided all with sewer and water as well as widening of the road, which made the license an executed, irrevocable license. Shearer v. Hodnette, 1995
(i)       While the license is irrevocable, it is still personal and does not extend beyond the lifetime of Ds.
(ii)     It is not an interest that runs with the land, it cannot be assigned.
(iii)    Alabama law requires more than other states à reliance + benefit conferred to licensor.
b.       Easement by Estoppel/Irrevocable License à a license coupled with an interest. It will NOT ripen into an easement.
c.        Easement by Estoppel may be prevented in Iowa by the condemnation law.
6.       Easements by Implication and Necessity à quasi easement, apparency, and necessity.
a.        Easement by Implication Upon Severance of Unity of Ownership (Quasi Easement)à (1) separation of title, (2) use of which gives rise to the easement shall have been so long continued and apparent as to show that it was intended to be permanent, (3) easement is necessary to the beneficial enjoyment of the land granted.
(i)       Common owner built a private sewer line and connected one parcel to another and then connected the private sewer line with the public one. The court found that Ps had an easement by implication upon severance of unity of ownership to use and maintain the sewer drain across D’s property. Romanchuk v. Plotkin
(ii)     Question of when severance occurs depends on whether the state applies a title or a lien theory.
(a)     Lien Theory à giving a mortgage gives rise to an easement in favor of the mortgagee that passes to the purchaser at the foreclosure sale. Majority view.
(b)    Title Theory à mortgage is a title transaction so severance of unity of ownership when a mortgage is granted.
b.       Easement of Necessityà (1) unity of title in a common source and (2) reasonable necessity for such an easement for the beneficial use and enjoyment of the property.
(i)   Presumption à Under a Florida statute and the CL rule, the court found that there is a presumption that whenever a party conveys property, he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of the land he still possesses. Roy v. Euro-Holland Vastgoed
(ii)   Common source of title need not be the immediate grantor but is any common source in the chain of title to the two estates which meets the criteria for creation of a way of necessity over the property of another.
(iii) This is efficient because is keeps landlocked parcels from being underutilized. 
(iv) May be able to have the county condemn (Iowa)
7.       Prescription à adverse, under claim of right, continuous and uninterrupted, open and notorious, exclusive, and with the knowledge and acquiescence of the owner of the servient tenement, for the full prescriptive period. 
a.        Ways for Public to Assert Against Private Property Owner à implied dedication, customary practice. Prescriptive right is private law, cannot have public prescriptive right (cannot acquire against the government). When implied dedication – private owner voluntarily gives up right. Customary – must not be able to remember when this wasn’t the custom. English view is of lost grant.
b.       Court found that a presumption of adversity and claim of right in a situation where two houses with a shared driveway and that D did not rebut the presumption by showing use was by license, agreement, or permission.
(i)       Presumption of adversity and claim of right. Owner bears burden of showing the use was by license, agreement, or permission.
(ii)     Majority Rule.
c.        Mere permissive use without claim of right to such use, no matter how long continued, can never ripen into a permanent easement so as to run with the land. 
(i)       Minority Rule. Iowa Code Ch. 564.1 Must give express notice of adverse possession claim. More than just USE, must give NOTICE. Iowais the only state with this rule.
(ii)     Use of the roadway to connect to the portion of P’s property that is separated from the rest of the parcel by a river was always permissive, no evidence that claimed as a matter of right or under any color of title.
(iii)    Under this view, need (1) adverse possession (2) oral agreement, express consent when party expends substantial money or labor to promote the claimed use in reliance upon consent or as a consideration for the agreement.
d.   Cannot have a negative prescriptive easement. NO physical presence without which there is not notice for the statute of limitations to run.
8.       Scope à intent at the time when drafted, apply a reasonableness standard.
a.        May Maintain Easement. Court holds that the prescriptive easement of the overhanging wires includes as an incident the right to enter the property underneath the lines for the purposes of maintenance and repairs. Farmer v. Kentucky Utilities Co.
(i)    

tween zoning ordinances and real covenants the more RESTRICTIVE wins.
3.       Real Covenants and Equitable Servitudes: Traditional Doctrine and Modern Deviations à Enforceable Contract, Intent to Bind Successors in Interest, Touch and Concern, and Privity of Estate (horizontal and vertical), and Notice.
a.        Court Gets Around American Rule of Horizontal Privity By Finding Easement (land transfer) With Covenant. The agreement for the installation of a drain tile ditch included the maintenance of the tile because the intent of the parties was to have the covenant run with the land, there was vertical and horizontal privity, and the creators viewed the duty to repair as extending beyond the original tiles normal useful life. Moseley v. Bishop, 1984
(i)       Enforceable K à statute of frauds
(ii)     Intent à parties at the time of conveyance intended to run with land.
(iii)    Touch and Concern à substance of the agreement must touch and concern the land.
(iv)   Privity of Estate à horizontal and vertical.
(a)     Vertical Privity à exists where the parties seeking to enforce the covenant and the party against whom enforcement is sought are successors in title to the property of the coventator respectively in title to the property of the covenantee and covenantor.
(b)    Horizontal Privity à depends on the court. English rule = present only in cases of L and T. Mass Rule = original promisor and promisee must have simultaneous legal interests in the land affected by the promise in order to meet the horizontal privity requirement. American Rule = find privity whenever the original promise is contained in a deed from the grantor to a grantee. Modern trend = anachronism, rarely tested in modern cases.
(c)     Equitable servitude à don’t meet the requirements of real covenants.
(d)    In Iowa, required to re-file a covenant every 21 years.
b.       Equitable Servitudes à No Horizontal Privity Requirement. Where notice, not permissible in equity to allow subsequent transferee to escape burden of enforcement. Notice + everything else, but horizontal privity lacking, can use equity to enforce. Basis of the covenant must be in the record.
c.        A covenant that imposes a lien on the land is an obligation that is passed onto subsequent owners of the land. Neponsit Property Owners Ass’n v. Emigrant Industrial Savings Bank, 1938
(i)       Covenant at issue allows for the common enjoyment of roads, beaches, public parks, and the burden of paying the costs for these services. Burden of paying for services is inseparable from the land which enjoys the benefits.
(ii)     CL à no rules that allowed enforceability of affirmative covenants. Requirement to pay doesn’t run.
(iii)    Modern à does covenant impose a burden which increases value. Benefit and burden to enforce against subsequent purchaser. 
(iv)   Marks transition between old law and equitable servitudes. No longer adhere to rule that affirmative covenants are treated differently than restrictive covenants à can enforce both. Privity in substance, not in form.