· Chapter 10: Private Land-Use Controls: The Law of Servitudes
· Historical Background
· Enforceable at law
· Enforceable in Equity
– Note: Possible that a particular restriction could be analyzed under covenant doctrine or easement doctrine
– 5 categories
§ A is given the right to enter upon B’s land – EASEMENT
§ A is given the right to enter upon B’s land and remove something attached to the land – PROFIT
§ A is given the right to enforce a restriction on the use of B’s land
§ A is given the right to require B to perform some act on B’s land
§ A is given the right to require B to pay money for upkeep of specified facilities
· Last 3 are Real Covenants or Equitable Servitudes
· Creation of Easements
– Creation of easement w/in Statute of Frauds
§ Requires writing signed by party to be bound.
§ Exceptions to SoF apply
· Part performance
§ Also easement can be created by implication or by prescription
– Willard v. First Church of Christ, Scientist 10.1 Willard v. 1st Church.doc (Petersen gave deed for lot he did not own. Then buys lot from lady with restriction for church parking)
§ Note: If someone buys property and they are not on notice of prior conveyance, then 2nd buyer may be declared owner b/c they did not have notice.
· Most important time is when purchase K is signed.
· Lawyer should update title search prior to closing
§ Pre-existing Rule – Cannot reserve easement to self, let alone someone else.
· Regrant Fiction – in same document, grantee regrants the easement to the grantor.
o Problem – need grantee’s signature
o Tiffany – A reservation allows a grantor’s whole interest in the property to pass to the grantee, but revests a newly created interest in the grantor.
o Harris – One cannot reserve and interest in property to a 3rd party (stranger to the deed). (Traditional Rule)
o SC Case: If 3rd party is grantor’s spouse
§ New Rule – A party can reserve an easement to a third party.
§ Note: In SC, may still have traditional rule unless the third party is your spouse b/c of exception
· Get around rule by using 2 documents
o Grant appurtenant easement 1st and record
o Then sell property. All future owners are subject to easement
§ Note: “Subject to” doesn’t create new easement. It references existing easement
§ Notes and Questions
· Easement Appurtenant
o Runs with the land
o Created to benefit another tract of land
§ Use of easement incident to ownership of other tract (Ex. Driveway)
o How long does it last? May be critical to designate you are crea
o erect structures and acquire an interest in the land by construction of improvement, the license becomes irrevocable after that right is exercised.
· When a license becomes irrevocable due to considerable expense, it becomes a grant through estoppel.
· If licensee, with knowledge of licensor, spends money to improve on the faith or strength of the license, the licensor becomes estopped from revoking the license.
· License irrevocable to extent necessary to prevent licensee from being unfairly deprived of expenditures. (If house burned down, no longer need license. Can’t rebuild)
– Shepard v. Purvine – Court found that an oral license was sufficient to be irrevocable between neighbors
– Henry v. Dalton – Court found that an oral agreement was not enough to make a license irrevocable. The transaction needed to be in writing.
– Note: Normally, licenses are revocable, personal and nontransferable. Revocable by death of grantor or by grantor saying “I cancel.” If servient land is sold, license is terminated. If dominant land is sold, license may be cancelled.