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

Fall 2009
–          Servitudes- agreements create interests in land, binding and benefiting not only the parties to the agreement in question but also their successors. Person not in possession of the property.
o   Easement, Covenant
§ License, Profit
–          Covenants- further divided into another dichotomy and enforceable at law (“equitable servitudes”) and enforceable in equity (“equitable servitude”).
o   A is given the right to enter upon B’s land (Easement)
o   A is given the right to enter upon B’s land and remove something attached to it (Profit)
o   A is given the right to enforce a restriction on the use of B’s land (Negative Easement)
o   A is given the right to require B to perform some act on B’s land (Real Covenant or Equitable servitude)
o   A is given the right to require B to pay money for the upkeep of specified facilities. (Real Covenant or Equitable servitude)
–          Legally enforceable right to someone not in possession of the land and right to physically go on the land.
o   Appurtenant- benefit to land
§ Servient tenement- land that is serving someone else.
§ Dominant Tenement- the benefited person
o   In Gross- Benefit to a person or group of people
–          Profits- a limited use, go on it to remove some product on that property (remove oil, rocks, etc).
–          License- Easement cannot be created orally. A license CAN be created orally. A license is generally revocable at will (taken away at anytime)
o   2 common law that license cannot be revoked by grantor:
§ if coupled with an interest (another interest of licensee)
§ Estoppel- the beneficiary the license is given has a RELIANCE or INVESTMENT or IMPROVEMENTS to the property. It would be inequitable for the licensor to revoke back the license.
–          3 ways to create Easement: Express, Implication, Prescription
o   Prior Use, or Necessity
–          Express Easement- in writing that grants someone an easement.
o   What happens if the owner if he is not going to retain that property?
§ Reservation- if the deed creates a new easement when transferring serveint tenant before property was transferred.
·         At common law okay if reserving easement for yourself. CANNOT reserve easement for someone else.
§ Exception-
Kitchen v. Kitchen
–          Nothing in writing from Robert so clearly no easement
–          William can only claim that he had a license
–          Robert said a license is revocable at will
–          The license became irrevocable by estoppel.
–          The court said that according to Michigan law to convey an interest in land you need to do it in writing b/c of Statute of Frauds.
o   Michigan court rejected common law rule b/c inconsistent
§ No estoppel exception that is revocable at will
Willard v. First Church of Christ, Scientist
–          The lots were owned by McGuigan, lots 19 and 20
o   Sold 19 to Mr. Petersen in which in turn wanted to sell the lot
o   The Willards wanted to buy both lots and conveyed both lots to the Willards even though he only had one of the lots.
o   “Subject to an easement for automobile parking during church hours for the benefit of the church… such easement to run with the land only so long as the property for whose benefit the easement is given is used for church purposes.”
§ At pertinent easement (b/c ambiguous)
§ This easement lasts until only so long as the property is used as church purposes
·         If not used for church purposes, the right to the property would automatically go back to the Willards.(Defeasible in fee simple Determinable)
–          They are claiming the church does not getting anything according to the language in the deed
o   Under the common law rule cannot deed property to someone else and reserve a newly created easement to someone else besides yourself.
–          Took a deed that had an easement on it so had to pay less due to of the easement
o   McGuigan gave discount of 1/3 of the property
§ He said he paid full market value
§ The price of the property should have reflected the windfall of the easement.
Different ways she could have conveyed easement
·         Grants easement to the church subject to exception.
·         Conveys right to Peterson and conveys it to herself and transfers her easement to the church
·         Conveys the hole property to the church and let the church convey the property to Peterson
·         The Peterson could actually grant easement then grant it to the church.
o   She should have done it with 2 documents
Implication Easement
–          Prior Use- implied when 4 requirements are met:
o   Somebody the grantor, owns a big piece of property and conveys SOME OF IT to someone else
o   Before the property is severed, there was a prior use that would label an prior use (a path

er claim of right (it is not permissible, no permission to come on property)
–          Continuous for required period (15 yrs in Michigan)
Othen v. Rosier (Continued)
–          Tried to use easement by prescription
–          The gate made it permissible (the gate was open and not locked so the court said they are obviously allowing Othen to use the gate)
–          Othen stated there was a prescripted easement before the gate was put up
o   Not prior to gate going up, b/c he did not physically move on property until 1900’s.
§ But doctrine of tacking does not help b/c the predecessor was Hill and Hill can not be using the lane against his own interest so can’t tack Hills use of the lane
§ His testimony was too vague where the road was during the prescriptive period. Did no where exactly where it is until 1906 when north fence was put up.
Equitable Servitudes
–          Real covenants- creation by enforceable agreement
o   Intent that covenant run with the land
Tulk v. Moxhay
–          Trying to create an easement for himself and a 3rd party.
–          There were these 3 things from Elm that he wanted to convey
–          Moxhay wanted
o   You cant build unless you squared
–          Is this a real covenants that runs with the land
o   It was created with enforceable agreement
o   There was intent that covenant run with the land
o   It touches and concerns the land (do you build on it or don’t build)
o   Vertical Privity (transfer of the property down to Elms and Moxhay)
§ Who had the original burden side of the covenant was Elms (Elms was promising that he wouldn’t do XYZ)
§ The person has to be succeeded in the entire estate and there is vertical Privity here
o   Horizontal Privity (relationship between Tulk and Elms)
§ Look at original tentor and tentee when covenant is made.
§ Have to have interest in the same property (strict or mutual Privity in old English)