Property II Outline

Servitudes

Servitudes: Non-possessory interests in property
– Classes of Servitudes
o Easement
o Covenant
o Profit
o Licenses
– Restatement 3d
o § 3.1 Validity of a Servitude; General Rule
§ a servitude… is valid unless it is illegal or unconstitutional or violates public policy
§ Servitudes that are invalid because they violate public policy include but are not limited to:
· a servitude that is arbitrary, spiteful or capricious
· a servitude that unreasonably burdens a fundamental constitutional right
· a servitude that imposes an unreasonable restraint on alienation
· a servitude that imposes an unreasonable restraint on trade or competition
· a servitude that is unconscionable
o §5.2 Persons to whom an appurtenant Benefit or Burden runs
§ Except as otherwise provided by the terms…
o §2.4

Easements

Easement
– a legally enforceable right of someone other than the person possessing the property to use the property
– Types
o Easement Appurtenant – easement to benefit another property
§ if the easement is not labeled this is the default
o Easement in Gross – intended to benefit a specific person or class of persons
– Duration
o any period of time
§ in fee simple
§ for life (life estate)
§ for term of years
– 3 ways to create
o expressly
§ written out in a deed in easement
§ issues
· when the owner gets rid of the property and grants the easement at the same time
o reservation – a provision in a deed that carves out an easement interest
§ this is okay at common law to reserve the easement for yourself, but not for a third party
o exception – recognizing that the property is subject to an existing easement
o implied
§ Prior Use (4 requirements)
· deed must convey part but not all of the grantor’s property (severance)
· before he conveyed part of the lot there was a prior use of that part to benefit the other part of the lot
· the prior use must be apparent at the time the severance occurs – visible or readily discoverable
· creating an easement must be necessary to the benefited estate
o some courts say it must be strictly necessary so that the owner of the dominant tenant cannot make use of his property w/o easement
o most courts only require reasonable necessity so that the easement would be beneficial to the dominant tenant (MI)
§ Necessity (3 requirements)
· severance of properties that were part of a common title
· creating the easement must be a necessity
o most courts use strict necessity (MI)
o some courts use reasonable necessity
· the necessity existed at the time of severance and still exists
o prescription
§ 5 requirements
· actual use
· exclusive use
o does not mean landowner does not use it, it just means that this user is using it despite the landowners use and the landowners uses does not interfere with it
· open and notorious
· under claim of right
o no permission (this is the hardest issue to overcome)
o silence is not permission it is acquiescence
o it is hard to draw a line between permission and acquiescence so the solution is the Fiction of the Lost Grant (MI)
§ Assume that somewhere back in time there was a grant of easement that has been lost
§ If no F of the LG then burden on P to prove there is no permission
· Continuous for a statutory period (15 years in MI)

Property Affected by Easement Appurtenant
– Servient Tenement
o property subject to the easement
– Dominant Tenement
o property benefited by the easement

Kitchen v. Kitchen
– if a license is for longer than 1 year the Statute of Frauds requires that it be granted in writing

Willard v. First Church of Christ, Scientist
– Church Parking lot case
– this is defaulted as an easement appurtenant because the grant is ambiguous
– Easement in Fee simple determinable because it cuts off when not used for specified purpose
– Rule at Common Law
o you cannot reserve a newly created easement for a third party when you are deeding a property
– How else could she have granted the easement
o give a deed of easement, subsequently sell property with an exception for the easement
o reserve the easement for herself and then transfer it to the church

Van Sandt v. Royster
– sewer running through three lots
– Test
o were the lots a division of a common property
o was there prior use
o was the prior use apparent
o was it necessary to the owners of the other parcels
§ court here uses reasonable necessity standard
– when looking at prior easements the court tries to determine what was in the minds of the parties at the time of the grant
– the court answers yes to all of the test questi