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Property II
University of South Carolina School of Law
Burkhard, James R.

I. SERVITUDES
A. EASEMENT- nonpossessoryinterest in land entitling use of land possessed by another- not just k right. Passes to subsequent owners
a. Two types:
1. Affirmative- right to go on and do some act
2. Negative- right to prevent owner from doing something
· CLASS- Common fence, Land, Air, Stream, Support

b. Easement appurtenant- benefits owner in use of another tract of land.
1. Dominant and servient tracts
– attached to and benefit dominant land and passes to any subsequent owner- even if not in conveyance
– Favored over in gross easements (cases of ambiguity) – to John Smith for getting to his house- watering his livestock-
o Policy: parties usually intend to benefit a tract of land and …
o Increases land value of the dominant tenement more than the burden on servient
c. Easement in gross- benefits person personally and not as an owner- assignable- tx for commercial only
Irrevocable license and easement in gross
e. License-oral or written, revocable privilege to go on land for some delineated purpose. Workers/guests- rather like an easement in gross, but cts prefer license- usually revocable.
– May be irrevocable when:
1) Coupled with another interest (could be right to remove one’s chattel)- this is a profit
i. Profit-(interest) right to go onto another’s land-take something off – part or product of land- ie, timber, minerals
2) estoppel – licensee expends in reliance- you let me build my house in reliance on it.
– presumed personal/non-assignable, but parties can make it transferable.

f. Reservation- creates a new easement- originally, grantor could not reserve easement in himself- hence, regrant theory- fiction that grantee regranted to grantor
g.Exception- excludes a preexisting servitude- grants easement to A over lot L. Then sells lot L, excepting easement over the lot to A.
Holbrook v. Taylor (neighbors, T use H’s driveway.Coal hauling road originally, then driveway for H’s tenant house, then 1964 T buys adjoining property and builds house- relied on it for too long- not Rx though, b/c had permission)
Mack v Edens – SC case- 50 yr dirt road- Dedication-1. Intent by O to dedicate property to public 2. Acceptance in reasonable time by public. Corley v Looper most recently cited. Ponds. (Look up)
2. Creation
a. Express grant- must satisfy SoF- b/c transfer of land interest
– ж- fraud, part perf., estoppel, implied and Rx easement
– failed attempt to give easement may = license (i.e. oral grant)
– Easement in fee simple- made to endure forever (can be created for specific time, yrs, life)
– Ambiguous document- if grants limited use or for limited purpose or identified space ŝ clearly marked boundaries, ct may construe easement. Also sale less than fair market value or servient owner pays taxes and this not separately assessed. (Preseault v US)
b. Reservation- new easement reserved by grantor over land granted
1. In favor of Grantor
i. Old rule: grantor can’t reserve in self- nor 3rd party
ii. Regrant Theory– in same document, grantee regrants the easement to grantor.
– Problem – need grantee’s signature- but acceptance of deed binding on grantee
– ж – SC- if 3rd party is grantor’s spouse (may still be this way in SC)
2. In favor of 3rd party- (covenant can be created to benefit 3rd person)
i. Solution- 2 pieces of paper- grant appurtenant easement 1st and record, then sell property. All future owners subject to easement.
Willard v. First Church of Christ, Scientist (buys lot from lady with restriction for church parking)- no reason not to follow grantor’s intent. Adequate notice to buyer. Unjust enrichment b/c he paid less for land.
– “subject to” references old easement- doesn’t mean new.
b. Implication- created by operation of law, not written instrument- exception to SoF- 2 basic situations:
1. Easement by existing use
a. implied by grant- to grantee- grantee gets more than what’s on title
b. implied by reservation- to grantor- grantee gets less than what’s on title
Van Sandt (Neighbor’s basement flooded with sewage)- quasi-easement owner uses one part of his land to benefit another. If sells the servient part, implied easement created if qualifies (split in authority- easier to grant implied easement)
– apparent (obvious), continuous, exists prior to severance, reasonably necessary for enjoyment of dominant part, parties expected to survive division
– never in gross
– prior use is quasi-easement b/c O can’t have easement over his own land
– apparent- doesn’t mean visible- should put reasonable person on notice
– continuous- not sporadic, includes permanent physical change in land though may not be daily.
– reasonably necessary for enjoyment of the dominant- implied grant standard
– strict necessity- b/c taking something from buyer- implied reservation standard
2. Easement by necessity- Usually an access way involving strict necessity, not mere convenience.
– Unity of ownership of dominant and servient- Implied when tract divided- can’t be over land that was never owned by the common grantor (Othen v. Rosier)
– No prior existing use required- but usually strict necessity must exist at time of severance
– Grantor granting landlocked parcel- easement implied- no other way to get to the land he’s selling.
– Terminates when necessity ends.
– cts won’t expand scope- can use road, not run electric lines
– SC- location may have to be definite
– public policy may dictate that grantor cannot explicitly deny access- prevent land locked
– lasts only as long as necessary- if get another way, then extinguished
• When dominant and servient come into same ownership, the easement is extinguished (can’t have easement over own land) and is not revived by severance- may have new easement by implication if circumstances are appropriate.
c. Prescription- adverse use for requisite period (like AP)
1. Elements:
i. Continuous use for statutory period- look to see if O interrupted the use- clock may start over if he sends a letter- some states must bring action or physically block
ii. Open and notorious- O should notice
iii. Actual- demands physical presence- no negative easements here.
iv. Adverse and under claim of right- without permission of servient owner
v. Exclusivity- (minority of states)- Claimant’s use does not depend on like rights in another. , must also be different from general public use.
2. Public Easement- could be implied dedication- public accepts, ie. county keeps up, etc.
– Long, continuous public use under claim of right
– stop clock, O must effectively interrupt or stop AP
– SC- 20 yrs to get Rx easement- same as lost grant AP
Lost Grant Theory- use shown to have existed 20 years, irrebuttable presumption grant made and lost
– O presumed to acquiesced.
– Letter stops clock
d. Express Dedication- written or physical behavior-
Mack v. Edens (argument over road. Mack kept paying taxes- sporadic public use- recreation- co didn’t maintain- no Rx easement)
Van Blarcum v N MB- plat dedicated area to public and public use even if only recreational.
Matthews- quasi-gov’t agency- public access must be afforded to public trust areas
Raleigh Avenue- must give someone access to beach and horizontal access- beach is no good when nowhere to rest in between.
McQueen- land washed away- state won’t let rebuild. Water came in and took- his lack of vigilance. State didn’t take.
Query- State won’t allow to build dock in marsh- Ct says grant did not include marshland. Not intent.

3. Scope- set by terms of grant or conditions that created it
a. How created- ct will try to see if increase of burden is unreasonable- what was intent and how to keep purpose under modern conditions- horse to car
i. express- look to document language and circumstances- limited to what created for
ii. implied easement- Changes necessary to preserve or reasonably foreseen- horse to cars
iii. Easement by necessity- extent of necessity determines
iv. Prescriptive easement- no increase b/c no assumption parties intended to accommodate future
b. Illegal uses- No increase to benefit a nondominant tenement. Could extinguish.
Brown v. Voss (we want to build our house on the back lot)
c. Change in Easement location- requires mutual consent
d. Use by servient owner- may use in ways that do not unreaso

Ex. Ben Satcher dammed up stream to make lake – navigable and open to public
– Ex. Zoo can’t fence river

B. REAL COVENANT
1. Introduction- promise respecting use of land that runs with the land at law.
• Can be a Promise to do or not to do something.
•Parties:
•original promisee- always benefits
•original promisor- always bound
•Subsequent owners- only bound if benefit/burden runs with land
– K law if original parties sue.
– Property law if successive party in the suit (originally only k parties could sue)
– Damages for suit in law.
– Injunction or specific performance for equity.
c. Real Covenants- Enforceable at Law-runs č land (successors can enforce)- money damages- not an interest in land.
2. Creation – writing. Never implied or by Rx. Only grantor signs (deed poll), but grantee bound to any covenants to be performed by grantee by accepting.
3. Enforcement- major question- will the benefit or burden run to assignees.
a. Requirements for burden to run- WITHN
i. Writing- SOF
ii. Intent that successors will be bound-
1. (“this covenant shall run with the land”- “myself, my heirs, and assigns”- clearly stated in deed, usually easy to show)
iii. Touch and concern-
1. (burdens- Yes: restricting to residential use, paying $ to homeowner’s association, maintain shrubs, pave parking. No: payment of money, to allow a company to manage the rental of property, seller to build a house for his normal fee- subsequent purchaser not bound. But, think about: to keep insurance on improvements- and rebuild if they are destroyed might be considered touch and concern- even though paying $ and receiving $.)
iv. privity of estate Horizontal and vertical-
1. (See below)
v. subsequent purchaser must have Notice
b. Requirement for Benefits same ж: Benefit runs to successor of any interest- no notice and no horizontal privity- WITV
c. Intent- usually in language of the deed- if unclear, ct will look to purpose and circumstances
– If thing not in being at the time of making of the covenant, burden will not run to assigns unless expressly says “assigns” (technical rule not followed in majority now)
d. Privity: how is it formed and used? (General dislike for burdens running- more onerous)
i. Horizontal- majority- required for burden (b/n original parties)
· English view- privity b/c LL/T (lease required- poor record system)
· Successive relationship-majority- there is privity b/c conveyance of interest in land (Runyon) Runs b/c it is in deed, wouldn’t run if agreement made a week later.
· Mutual interest- minority- burden will run if 1 party has interest (apart from covenant) in the land of the other party. O sells one of 2 lots to A and reserves easement across this lot. This = privity.
· Restatement- either mutual or successive
ii. Vertical (b/n original k party and assignee)
Required for Burden to run:
· Runs ĉ estate – not land-to run, successor must get same estate as grantor- non-hostile nexus
· Ex. fee simple owner tx life estate- privity broken
Required for Benefit to run:
· assigns of any interest = privity (less onerous- any little bit will do)
ж: Homeowner’s associations can sue to enforce benefit even though no succession to land owned by original promisee. Homeowner’s ass’n = agent of real parties in interest who own land. (Neponsit)