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Property I
Wayne State University Law School
Bartell, Laura B.

Outline Part II

I. Private Land Use Arrangements

SERVITUDES – Non Possessory Interests in Property

Give rights to someone who is not in possession of the land to use it; or
Limit the ability of the owner and possessor to do what they want with it

Basics: Neighbors often desire to make private agreements concerning use of their land and they want those to be binding on subsequent owners. There are 2 basic ways to do this.
1. Easement: one landowner grants another person the right to use his land for some purpose or in some manner. àGrant rights to non-possessor
2. Covenant: one landowner promises another that she will use or refrain from using her land in a specific was. àLimit rights of possessor

Types of Servitudes



License (permission to enter)

Profit a Pendre (Profit)

Appurtenant = benefits specific other property

Real Covenants = run w/ land at law

Enforceable at law

Non-Possessory interest in another’s property that
1) May be created orally (not subject to Statute of Frauds)
2) Is revocable at will unless
A) Coupled w/ an interest
B) Equitable Estoppel

Right to use property of another by removing product attached thereto (e.g., oil, minerals, timber).

Apply same rules as for easements.

In Gross = benefits a person or class of persons (rather than a benefit to a landowner)

àIf ambiguous, then construed as appurtenant.

Equitable Servitudes = run w/ land in equity

Enforceable in equity

Servient Tenement = property that is subject to the easement.

The owner of that property is called the servient tenant.

Dominant Tenement = property that is benefited (if appurtenant).

Owner is called the dominant tenant.

àEasements are interests in property, and they can last for various periods, including forever. They are labeled in the same way as estates. Most are easements in fee simple.

Kitchen v. Kitchen (MI 2002)à License in MI
Facts: William (P) and Robert Kitchen (D) were equal owners of Kitchen Farms. Robert owns and resides on a parcel of property situated on the east side of the Kitchen farm. While the brothers were owners of Kitchen Farms, they farmed the northern section of Robert’s parcel. An arm of an irrigation system crossed that property. In 1995, a dispute arose, resulting in William filing a complaint for dissolution of the business. Thereafter, William and Robert entered into a written agreement to conduct a private auction at which the higher bidder would acquire the other’s interest in Kitchen Farms. William, as high bidder, purchased Robert’s interest. The agreement did not address the farming of Robert’s land or the irrigation system. Robert orally agreed that the irrigation system could run through his land for

ement granting a right to use property is conveyed (subject to statute of frauds). The major problem here is when the owner of the servient tenement sells his property.
· Reservation = if a provision is inserted in a deed being transferred, one can reserve an easement for oneself out of what is being transferred to someone else.
o At CL, this is fine as long as the reservation is reserving an easement in the grantor.
o But, at CL you could not reserve an easement in favor of a 3rd person (this rule survives in most jurisdictions today).
· Exception = if there is a pre-existing easement and the owner of the servient tenement transfers the land, the easement is retained.

Willard v. First Church of Christ, Scientist (CA 1972) (p. 785) à
Facts: McGuigan conveyed lot 20 to Peterson by a deed that purported to reserve an easement for parking “during church hours” for the benefit of the adjacent church. Petersen conveyed lot 20 to Willard under a deed that made no mention of the parking easement. After learning of the easement, Willard sought to quiet title by voiding the purported easement. Trial ct. voided it because under CL you can’t reserve an interest in a 3rd party (the Church).
The easement was “for the benefit of the church” but only for so long as the property is used for church purposes. It is ambiguous, so ct. says it is an easement appurtenant.