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

Property II
Burkhard
Spring 2010
Chapter 10: Private Land-Use Controls: The Law of Servitudes
Land use come out of pivate agreements; usually to increase the total value of all parcels involved
v Servitudes
o Easements
o Covenants
§ Enforceable at law
§ Enforceable in Equity (equitable servitudes)
o Historically evolved from easement à covenant

v *Some restrictions can be analyzed as an easement or covenant
o 5 categories
§ easement: A is given the right to enter upon B’s land
§ profit: A is given the right to enter upon B’s land and remove something attached to the land
Real Covenant or Equitable Servitudes
§ negative: 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
[ Creation of Easements
] Creation of easement w/in Statute of Frauds
L Requires writing signed by party to be bound.
L Exceptions to SoF apply
… Fraud
… Part performance
… Estoppel
L 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)
L 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
L Pre-existing Rule – Cannot reserve easement to self, let alone someone else.
… Regrant Fiction – in same document, grantee regrants the easement to the grantor.
y Problem – need grantee’s signature
y 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.
L Harris – One cannot reserve and interest in property to a 3rd party (stranger to the deed). (Traditional Rule)
… Exceptions
y SC Case: If 3rd party is grantor’s spouse
L New Rule – A party can reserve an easement to a third party.
L Note: In SC, may still have traditional rule b/c of exception
… Get around rule by using 2 documents
y Grant appurtenant easement 1st and record
y Then sell property. All future owners are subject to easement
L Note: “Subject to” doesn’t create new easement. It references existing easement
L Notes and Questions
… Easement Appurtenant
y Runs with the land
y Created to benefit another tract of land
â Use of easement incident to ownership of other tract (Ex. Driveway)
y How long does it last? May be critical to designate you are creating FSA in easement
y Dominant Tenement – An estate that benefits from an easement
w Easement Appurtenant attaches to dominant tenement
y Servient Tenement – An estate burdened by an easement
… Easement in Gross
y Runs with the person
y 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
y 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
y Easement may not be excepted in favor of a 3rd party
] Note: Licenses
L 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
r Coupled with another property interest
r 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)
L Creation of Easement – An easement may be created by express written grant, by implication, by prescription, or by estoppel.
L 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.
L 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 ag

or 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)
L Courts will not expand the necessity (ex. can use road, but cannot run electric lines)
L Elements of Prescription
… Open
… Adverse
… Continuous
… Over statutory period
L In SC – to establish a prescriptive easement, location may have to be definite
] Note: Easement by Necessity
L Policy: One who grants a thing must be understood to have granted that without which the granted thing cannot exist
L Majority of court require strict necessity.
L An easement by necessity endures only so long as it is necessary. When the necessity disappears, so does the easement.
L Almost all easements by necessity have been limited to roads.
] Note: Easement by Prescription
L 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
¨ Open and notorious
¨ Continuous
¨ Adverse
¨ Under claim of right.
¨ Difference: Use does not have to be exclusive. OR Exclusive use required, but exclusive means claimant’s right to use land does not depend on a like right on others (not that only claimant used land)
L 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
L In SC
… To have prescriptive easement, time period is 20 years. (Same as lost grant adverse possession)