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

· Chapter 10: Private Land-Use Controls: The Law of Servitudes
· Easements
· Historical Background
– Servitudes
§ Easements
§ Covenants
· 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
· Fraud
· Part performance
· Estoppel
§ 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)
· Exceptions
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 creating FSA in easement
o Dominant Tenement – An estate that benefits from an easement
§ Easement Appurtenant attaches to dominant tenement
o Servient Tenement – An estate burdened by an easement
· Easement in Gross
o Runs with the person
o Easement benefits particular person (Ex. Hunting)
· Law construes in favor of Easement Appurtenant
· Reservation – Provision in deed creating some new servitude which did not exist before as an independent interest
o Easement may be reserved in favor of 3rd party
· Exception – A provision in a deed that excludes from the grant some pre-existing servitude on the land
o Easement may not be excepted in favor of a 3rd party
– Note: Licenses
§ Revocable right granted by someone to give another person the right to come on the property
· Revocable by servient owner, but may become irrevocable if
o Coupled with another property interest
o By estoppel
· If irrevocable, it is like an easement
– Holbrook v. Taylor 10.2 Holbrook v. Taylor.doc (neighbors, T use H’s driveway. Refuse to buy easement)
§ Creation of Easement – An easement may be created by express written grant, by implication, by prescription, or by estoppel.
§ Prescription – An easement is created when use is open, peaceable, continuous, and under claim of right adverse to the owner and with his knowledge and acquiescence over statutory period.
§ Estoppel – Reasonable reliance based on promise or representation
· Reliance measured by change in position, normally investment in improvements
· Silence may be representation
· Where a license to enter land includes the right to 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.
– Van Sandt v. Royster 10.3 Van Sandt v. Royster.doc (Neighbor’s basement flooded with sewage)
§ The owner of land may use one part of the land to benefit another part of his land. This is a quasi-easement. If the owner conveys the quasi-dominant parcel of the land, an easement is created in the grantee in quasi-servient parcel if it is of apparent, continuous and necessary character.
· Granted by Implication – Granted use of easement to new owner of dominant estate
§ If the quasi-servient parcel is conveyed, some courts have held that the easement is created by implied reservation and some courts have held that the easement needs to be mentioned in the deed.
· Reserved by Implication – Original owner still has dominant estate and reserved use of the easement for benefit of dominant estate
o In reservation, owner has knowledge of necessity and ability to place reservation in deed.
o B/c taking something away from buyer, strict necessity has to be established.
§ An easement created by implication arises as an inference of the intentions of the parties to a conveyance.
§ Notion – At time it was created, if it has notion of being obvious, permanent, continuous and necessary, then at that time, quasi-easement converts/ripens into an easement (at the time of severance) (Easement by implication)
§ Note: Easement is binding on subsequent buyers of the land
· (Go to property and see if there are any possible easements)
§ Must be pre-existing use with presumption that preexisting use would continue after severance
· Cannot extend or expand use that existed at the time of severance
§ Easement by Necessity ends when necessity ends.
– Notes and Questions: Implied Easements
§ 2 situations when easement will be implied
· Easement implied from prior existing use
· Easement by necessity – necessary to enjoyment of land and necessity arose when the dominant parcel was severed from the servient parcel
§ If the dominant tenement and the servient tenement come into the same ownership, the easement is extinguished altogether.
– Othen v. Rosier 10.4 Othen v. Rosier.doc (O used R’s driveway. R built levy that flooded the drive)
§ An easement by necessity by implied reservation requires:
· Unity of ownership of dominant and servient estates
· Necessity
· Necessity must exist at the time of severance of servient from dominant estate
§ An easement by necessity cannot be implied over land that was never owned by a common grantor of the dominant and servient tenements.
§ Use by express or implied permission or license cannot ripen into an easement by prescription.
§ If grantor grants land in middle of his land, an easement to cross his land for access is implied.
§ For Easement by prescription, use must be adverse.
· Often dominant and servient owners use land. Many courts say diff. bn. adverse possession and easement is the owner’s use of the land.
· If owner uses easement for same purpose, not adverse. It is presumed to be permissive. (Minority position)
§ Courts will not expand the necessity (ex. can use road, but cannot run electric lines)
§ Elements of Prescription
· Open
· Adverse
· Continuous
· Over statutory period
§ In SC – to establish a prescriptive easement, location may have to be definite
– Note: Easement by Necessity
§ Policy: One who grants a thing must be understood to have granted that without which the granted thing cannot exist
§ Necessity must have existed at the time of the easement
§ Majority of court require strict necessity.
§ An easement by necessity endures only so long as it is necessary. When the necessity disappears, so does the easement.
§ Almost all easements by necessity have been limited to roads.
– Note: Easement by Prescription
§ Adverse Possession Theory
· To stop clock, owner must effectively interrupt or stop adverse possession. (Fence torn down, clock still runs)
· Same elements as adverse possession are required
o Open and notorious
o Continuous
o Adverse
o Under claim of right.
o Difference: Use does not have to be exclusive. OR Exclusive use required, but exclusive means claimant’s right to use land d oes not depend on a like right on others (not that only claimant used land)
§ Lost Grant Theory
· If use was shown to have existed for 20 years, it was presumed that a grant of an easement had been made and that the grant had been lost. The presumption could not be rebutted by evidence that no grant had been made.
· Majority of courts rejected lost grant theory.
· Owner is presumed to acquiesce or consent in the use
· User must show that use was not permissive and the owner acquiesced.
· If owner sends letter, clock stops b/c no acquiesce
§ In SC
· To have prescriptive easement, time period is 20 years. (Same as lost grant adverse possession)
· In theory, SC should use lost grant theory, but Burkhard has no clue how court would rule. SC law in terrible state of uncertainty.
– South Carolina Cases
§ Mack v. Evans 10.41 Mack v. Edens.doc (argument over road.)
· Dedication requires:
o Intent to dedicate the property expressed in a positive and unmistakable manner and
§ Intent may be implied from allowing lengthy public use of the land.
§ Dedication may not be implied from permissive, sporadic and recreational use of the property.
§ The evidence must show that the owner clearly, convincingly, or unequivocally intended to dedicate the property.
o Express or implied public acceptance
§ Acceptance may be implied by use or;
§ By a showing that taxes are not being assessed on the property.
· In cases where Ct finds dedication, county has usually done a lot of road maintenance
§ Van Blarcum v. City of North Myrtle Beach 10.42 Van Blarcums v. North Myrtle.doc
· Proof of dedication requires a showing of the owner’s intent to dedicate the property to public use and acceptance by the public.
· A recorded plat is sufficient to show the owner’s intent (McAllister v. Smiley).
· An area between the seaward lot lines and the high water mark is indicative of intent to dedicate that area (SC Supreme Court).
· Acceptance may be implied by public’s use or maintenance of the property.
· Just because a municipality continued to tax, does not prevent the municipality from claiming the property.
§ Court may apply rule in different ways depending on who the parties are.
· Ex. City wants land, dedication. Private individual wants land, no dedication.
– Matthews v. Bay Head Improvement Association 10.5 Matthews v. Bay Head.doc
§ Public Trust Doctrine – The land covered by tidal waters belongs to the sovereign for the common use of all the people (Neptune v. Avon) (includes any land affected by the ebb and flow of the tides)
· In SC – occasionally land exempt from the public trust b/c owner has King’s Grant (usually marshland)
· Everyone has right to use property, but there can be government regulation on the land.
§ Lusardi v. Curtis – The public trust extends to municipally owned dry sand areas because enjoyment of foreshore is inseparable from use of dry sand beaches.
§ What is the extent of the public’s interest in privately owned dry sand beaches? The court finds 2 options

erest in the grantor
· If an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.
· Rule: Silence of deed as to covenant is irrelevant if notice is given. (It can be actual or constructive notice)
§ Equitable Servitude – covenant respecting the use of land enforceable against successor owners or possessors in equity regardless of its enforceability at law
· Equity requires:
o Parties intend the promise to run
o That subsequent purchaser have actual or constructive notice of the covenant
o That the covenant touch and concern the land
o Horizontal privity of estate is of no importance in equity
o Vertical privity is not required for burden to run
o For a person other that original covenantee to enforce the benefit, vertical privity may be required.
§ Remedy for Equitable Servitude is an injunction
§ Notice: Suing on same document for Real Covenant and Equitable Servitude. By virtue of changing remedy requested, different legal principles apply. May also be able to argue it is an Easement (have to look at easement rules)
· Creation of Covenants
– Sanborn v. McLean 10.91 Sanborn v. McLean.doc (D wants to build gas station in his back yard)
§ If the owner of 2 or more lots, so situated as to bear the relation, sells one with restrictions of benefit to the retained land, the servitude becomes mutual, and, during the period of restraint, the owner of the lot retained can do nothing forbidden to the owner of the lot sold. This reciprocal negative easement runs with the land sold and abides with land retained until expiration.
· It is operative on any owner with actual or constructive notice of it.
· It must start with a common owner and is never retroactive
§ Inquiry Notice: If a person has notice from the view of the general plan or neighborhood, that person is put to inquire as to whether there exist any restrictions on the land.
· May be on notice from general plan – If you see general plan, can see it is neighborhood. May have duty to search neighboring lots
§ In SC – Basic rules in Sanborn
· May not be able to imply benefit
· Beneficiary may not be able to enforce
– Neponsit Property Owners’ Association v. Emigrant Industrial Savings Bank 10.92 Neoponsit v. Emigrant.doc (Bank does not want to pay $4/yr for roads near acquired land)
§ Just because the deed says that it will run with the land, does not mean that it will.
§ The requirements for a covenant to run with the land are
· Intent of both parties that the covenant will run;
· The covenant must touch and concern the land; and
o A covenant, which runs with the land, must affect the legal relations of the parties to the covenant as owners of particular parcels of land and not merely as members of the community
o If covenantor’s legal interest in land is rendered less valuable by the covenant, then the burden of the covenant satisfies the requirement that the covenant touch and concern the land.
o If covenantee’s legal interest in land is rendered more valuable by the covenant, then the benefit satisfies the requirement that the covenant touch and concern the land
o In SC – requirement to pay fee to clean common areas does touch and concern
· There must be privity of estate.
o Equitable Servitude requires vertical privity on benefited side
· Successor must have actual or constructive notice of the covenant
§ A covenant to pay money does not usually touch and concern the land
– Notes and Problems
§ Courts have been wary of enforcing affirmative covenants against successors b/c
· Courts reluctant to issue orders to perform a series of acts requiring continued judicial supervision (esp. in SC)
· Enforcing an affirmative covenant, which requires payment of money or maintenance of property may impose a large personal liability on successor
· An affirmative obligation unlimited in time resembles a feudal service or perpetual rent.
– Restatement (Third) of Property, Servitudes, § 7.11 (less influence in SC)
§ Divided touch and concern into 2 sections
· 1 set of rules enforcing covenant at inception
· Different set of rules after covenant has been in effect awhile
– Caullett v. Stanley Stilwell & Sons, Inc. 10.93 Caulett v. Stanley Stilwell.doc (Developer sells land, reserving right to build house in deed)
§ Vague covenants should not be construed to impair the alienability of the land.
§ In order to touch and concern the land it must be a promise respecting the use of the land. The covenant must define the limitations on the use of the land.
§ Just because you call it a covenant, doesn’t make it a covenant.
§ Burdened and benefited property must exist for a covenant to run with the land. The benefit can run if the burden is in gross, but if the benefit is in gross, the burden does not run with the land.
· Note: For easements rule is reversed, no burden in gross, only benefit in gross
– Notes, Question and Problem