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

Professor Bartell – Winter 2016
Private Land Use Arrangements: Servitudes
CM 13 (p. 487-496)
Non-possessory rights of property
Land use arrangements arising out of private agreements
Either give someone not in possession of property ability to use or limit use
Usually, not always, involve 2 + parcels of land
Purpose of agreements: to increase the total value of all parcels involved
Usually, not always, effect of the agreements is to burden one parcel of land for the benefit of another parcel
Ex: O of Tract 1 may have an easement to cross Tract 2 to reach a public road
Burdens and benefits often reciprocal (ex: all lots in a subdivision restricted to residential use)
Agreements create interests in land, binding and benefitting parties to agreement & their successors — servitudes
Traditional servitude doctrine – Private use interests classified into 4 categories:
(1) Easements**
(2) Covenants**
Covenants enforceable at law – real covenants
Covenants enforceable in equity – equitable servitudes
(3) Profits
(4) Licenses
Functional overlap among the different doctrinal categories — historical accident
RST 3rd Property – tried to create a unified and internally consistent law of servitudes
New Servitude rules
Many courts continue to rely on the traditional rules
Right to use property in possession of another by going onto that property and removing some product attached thereto – ex: oil, rocks, coal, timber (right to take off)
Similar to easement b/c involves right to go onto someone else’s property
Like easement for limited purpose – can go on only to remove that particular type of property
All other respects like a easement
If you know the rules dealing w/ easements, you know the rules dealing w/ profits
Ex: I give you my right to come and take it.
w/in Statute of Frauds
Interest in property owned by someone else
Right to use property in possession of another
Similar to easement EXCEPT 2 ways different from easement:
(1) May be created orally (don't need a writing satisfying SOF)
(2) Revocable at any time – can be taken back, terminated by person who granted
Is revocable at will UNLESS – 2 situations at CL where grantor cannot revoke at will:
(1) For a license coupled with an interest OR
License given because the licensee (person license given) owns some chattel on licensor's land – right to go onto the land to get their chattel
MI courts – recognize this exception b/c inherent should have access to that chattel and can't be denied access simply be revoking license
(2) By reason of estoppel (investments in estate in reliance upon license)
Suggests if licensor has given a license to licensee to come onto licensor's property, and in reliance on that license, licensee has taken action (usually by spending money) at CL b/c of detrimental reliance licensor barred/ estopped from revoking license
CL: Estoppel means no right to revoke license
MICHIGAN does not follow common law rule (See KITCHEN – MI rejects irrevocable licenses by reason of estoppel)
If transferring interest in land has to be revocable or be in writing (SOF)
Kitchen v. Kitchen (2012, MI): (CM 13) LICENSES
Robert Kitchen oral agreement with brother William Kitchen: William LICENSE to farm on Robert’s portion of the farm
Robert revoked license
William sues Robert on the principle of estoppel: William relied on Robert’s promise, so Robert cannot revoke license
In MICHIGAN, can one revoke a license despite estoppel?
Rule: In MICHIGAN, one CAN revoke a license despite estoppel.
Holding: Court rejected CL rule of irrevocable license by reason of estoppel
Statute of Frauds – in order to create an interest in property for more than a year, all states require that it is in writing.
Court said SOF requires that any transfer of interest in property for > 1 year be in writing
This license purported to transfer an interest in property for > 1 year, and if going to do that and have it be irrevocable à then must comply with SOF
Transferring interest in land has to be revocable OR comply w/ SOF
CANNOT accept license b/c not in writing, cannot accept that licenses are irrevocable
In MICHIGAN, all licenses (not in writing) are revocable at will.
If in writing = easement
English enclosure movement + Industrial Revolution àcreated need for new, systematic body of law dealing w/ easements of way as well as other servitudes regulating interdependent land uses
Legally enforceable right to use property in possession of another
Person holding easement and person holding property MUST be different – CANNOT have an easement across own property
SO, if you acquire property across which you had an easement à easement disappears
An easement can have a duration comparable to any of the possessory estates
Ex: an easement can be in fee simple (perpetual duration), or for life, or for a term of years
w/in Statute of Frauds
Classification of Easements:
Affirmative/ Negative:
Affirmative (positive) (vast majority)
Mostly affirmative
Give the interest holder a right to do an affirmative act on land that someone else owns
Negative (restrictive)
Few recognized by early law – easements forbidding one landowner from doing something on his land that might harm a neighbor
Courts chary of creating new negative easements and strictly fenced them in
OR other classification giving easement owners the right to make some specific use (or in the case of negative easement, restrict some particular use) of land that they do not own:
Appurtenant/ In Gross
Both give easement owners right to make some specific use of land that they do not own
Easement Appurtenant (judicial preference if unclear)
Benefits land
Gives that right to whomever owns a parcel of land that the easement benefits
Benefits the easement owner in the use of land belonging to that owner
Require both a dominant tenement (or estate) and a servient tenement
Benefitted: dominant estate
Easement attaches to and benefits the dominant tenement
Burdened: servient estate
Usually transferable
Easement transfers along w/ the dominant tenement to successive owners
But can be made personal to the easement owner only and not transferable to others
Benefits and burdens pass automatically to assignees of the land to which they are appurtenant, if the parties so intend and the burdened party has notice of the easement
Lasts as long as any possessory interest in property
Most easements intended to and do last forever, but can draft one that is limited
Same terminology as for estates (easement in fee simple, easement for term of years, etc.)
Easement in Gross
Benefits persons (not land)
Gives the right to some person w/o regard to ownership of land
Benefits the easement owner personally rather than in connection with use of land which that person owns
Because it does not benefit any land – involves no dominant estate, only a servient estate
Burdened: servient estate
May be alienable or inalienable
Sometimes said to be “personal,” but personal only in the sense that they do not attach to any parcel of land owned by the easement owner, not in the sense that they may not be transferred t

of Christ, Scientist (1972, S.C. CA): EXPRESS EASEMENT – Grantor Conveys Servient Tenement
Facts: Although when Peterson bought a lot from McGuigan, the deed reserved an easement on the lot for the use of First Church of Christ, Scientist (D), Peterson then sold the lot to the Willards (P) without the easement.
Peterson bought lot 19 from McGuigan. Peterson also offered to buy abutting lot 20 to sell both lots to the Willards (P)
McGuigan, a member of the First Church of Christ (D), had always allowed the Church to use the lot for parking
McGuigan had a clause included in the deed to Peterson whereby lot 20 was subject to an easement for church parking to run w/ the land as long as used for Church purposes:
“Subject to an easement for automobile parking during church hours for the benefit of the church…such easement to run w/ the land only so long as the property for whose benefit the easement is given is used for church purpose” ß Easement appurtenant – easement to property rather than church
Peterson bought the lot and recorded the deed, but Peterson did NOT include the easement in his deed to the Willards
When Willards became aware of easement à sued to quiet title. At trial, McGuigan testified that she had originally bought lot 20 to provide D church parking and would not have sold it w/o the easement 
T/C: although McGuigan and Peterson intended to convey an easement, the clause was invalidated under the CL rule that the grantor, in deeding property to one person, cannot reserve an interest in the same property to a 3rd party:
CL reservation of easement – newly created easement b/c no easement in church before this transaction – cannot be to a 3rd party, and this was intended to benefit someone other than Mrs. McGuigan –the church.
Willard gets a judgment that the land he owns is NOT subject to an easement that church owns. Church appealed.
?: May a grantor, in deeding real property to one person, effectively reserve an interest in the property to another?
Rule: Contrary to the ancient CL rule, modernly, a grantor, in deeding property to one person, may effectively reserve and vest an interest in the same property in a third party.
H: Reversed.
This Court rejected CL rule against reservation in favor of a third party
Easement CAN be RESERVED in favor of 3rd party
(Footnote 1: Easement can NOT be EXCEPTED in favor of 3rd party)
In this case, such a reservation vests the interest in the third party (NOT the CL rule)
Reasons why Ct. rejected CL rule:
(1) Wanted to effectuate the intent of Mrs. McGuigan
(2) CL rule is old – no longer persuasive
(3) Economic argument – Mrs. McGuigan says she charged less for lot 20 b/c easement across it
But he might have agreed to pay that price knowing that easement was invalid b/c at the time Mrs. McGuigan and Peterson negotiated this court had NOT rejected CL rule which precluded reservation of easement in favor of 3rd party)