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

Property Outline
I. Servitudes

SERVITUDES

EASEMENT

COVENANT

LICENSE

PROFIT

Appurtenant = Benefits Land

Real Covenants = Run with Land at Law

Non Possessory Interest in Property that
1) May be Created Orally
2) Generally at CLIs Revocable at will unless
(a) Couple with an interest
(b) Estoppel

Right to use property by removing product attached thereto

In Gross = Benefits a Person or Class of Persons

Equitable Servitudes = Run with Land in Equity

· Easements
o Terminology
§ Appurtenant – An appurtenant easement is one that benefits the owner of another parcel of land. (X has an easement across Y’s property to get to a road)
· These easements are attached to the land.
§ In Gross – Personal benefit to another. (X and only X can cross Y’s land to get to the beach)
· These easements do not run with the land
§ Servient – The burdened party or parcel of land. The parcel across which the easement runs.
§ Dominant – The benefitted parcel of person.

PROPERTY AFFECTED BY EASEMENT APPURTENANT

SERVIENT TENEMENT

DOMINANT TENEMENT

Property Subject to the Easement

Property Benefited by the Easement

§ Profit – Being able to take something to the land. (Harvesting something, cutting down trees for wood, etc.)
§ License – Permission to enter the licensor’s land. They are revocable at anytime unless made unrevocable by the licensor. (Shoppers, guests, workers have license.)
· Kitchen v. Kitchen – Brothers with hose across property, oral agreement to let it stay there. New owner does not want the hose across his land. Because it was not in writing the court found that a license existed and that the new owner could revoke the license for the hose across his property.
o Creation of Easements

EXPRESS EASEMENTS

GRANTOR RETAINS SERVIENT TENEMENT

GRANTOR CONVEYS SERVIENT TENEMENT

Deed of easement to holder of dominant tenement or holder of easement in gross

1) Reservation –
Grantor creates new easement in grantor’s favor when conveying servient tenement
2) Exception –
Grantor carves out from grant existing easement when conveying servient tenement

§ Expressly Created – Made by a written document that must be signed by the grantor.
· An owner of property can create an easement for himself across his property. When he transfers the property to someone else he retains a reservation for himself across his former property.
o This does not work for third parties, must be for yourself.
· Willard v. First Church – Old lady owned a house with a parking lot and she let church members park there. She tried to create a reservation for the parking lot for church use (Reservation for third party). Under common law you cannot do this, most jurisdictions would not let this fly. But the she won because the court looked at her intent.
§ Implied Easement – Can be created in two ways:
· Prior Use – Without an explicit agreement, another party/parcel has been using another parcel in a way that would suggest that there is an easement. (A crosses B’s property everyday to get to a road. There is no official agreement between A and B).
o Four Requirements for Prior Use – (1) Common Owner (A has an easement across their property, they sell part of their property, that easement stays.), (2) Reasonable Necessity (The easement must be reasonably necessary for the benefitting person/parcel to enjoy the property.), (3) Continuous Use (The easement must be consistently used, not sporadically, and use must be apparent), (4) Intended Continuation (There must be evidence through the previous requirements or price of the property etc, that the easement was meant to continue.)

EASEMENT BY PRIOR USE

Severance of commonly owned parcels

Prior use that would constitute easement if parcels were not commonly owned
(qausi easement)

Prior use was apparent (at time of the severance -visible or readily discoverable)

Easement is necessary to dominant tenement

MAJORITY

MINORITY

Reasonable Necessity (MI REQUIRES THIS – easement beneficial to benefited tenant)

Strict
Necessity

o Van Sandt v. Royster – Sewer line that is insufficient to accommodate the houses on a block, last guy in block has sewage flooding his home. The easement was apparent because there were no outhouses or septic tanks on the block, it was necessary (in door plumbing, the shit has to go somewhere).
· Necessity – The easement must be strictly necessary. Such as landlocked property in which there is no way in or out other than going across someone else’s property.

EASEMENT BY NECESSITY

Severance of Commonly Owned Parcels

Easement is Necessary to Dominant Tenement

Necessity Existed:
1) At time of severance
2) At time easement sought

MAJORITY

MINORITY

Strict
Necessity

Reasonable
Necessity (MI)

o Othen v. Rosier – There is a landlocked property and Othen claims he has a necessary easement across Rosier’s property. Being surrounded by other property does not mean that you have an easement across every property. In this case Othen had an implied easement across one of the other properties. (But he wanted Rosier’s because of a certain road.
§ Easement by Presecription – Five Requirements: The same as for adverse possession accept you are not getting title to the entire property but rather the right to the easement.

EASEMENT BY PRESCRIPTION

Actual Use
Exclusive
Open and Notorious
Under Claim of Right
Continuous for Required Period

· Othen v. Rosier – Court rejects claim for easement by prescription because Othen was not exclusively using the claimed easement, Rosier was using it as well.
o Scope of Easements

SCOPE OF EASEMENTS

Original Location

Benefited Estates

Types of Use

Express

Express Agreement
Merger of Estates
Release or abandonment
Adverse Use
End of Necessity
Death

o
§ Expiration – The expressed time of the easement runs out.
§ Merger – The servient estate acquires the dominant estate, you cannot have an easement across your own property.
§ Abandonment – The dominant estate takes acts that says they will never use the easement again, stopping use is not sufficient. (A railroad ripping up tracks)
§ Cessation of Purpose – The purpose of the easement has ceased/no longer exists.
§ Actions of Servient Estate Holder – Servient estate adversely uses the easement.
· Adverse possession requirements.
§ Eminent Domain – Land owners can be forced to sell land to the government if they pay the reasonable value for it and this destroys an easement.
§ Preseault v. US – A railway that removes tracks, switches, etc from an area through which they had an easement has abandoned the easement.
· Real Covenants – It is an agreement that runs with the land that says you will do something or refrain from doing something. It has to be in writing.

Real Covenants

Creation by enforceable agreement
Intent that covenant run with the land
Touch and Concern
Vertical Privity
Horizontal Privity

·
o Intent – Must be intended to run with land, and it can express or implied.
§ Caullett v. Stanley Stilwell – Builder of a residential development sold a lot with no house but on the condition that he be contracted to build the first structure on the property. The land was burdened and created a personal benefit for the contractor.
· The court ruled that this was a bad covenant but the modern trend seems like it would allow land to be burdened for the benefit of a person.
§ Restatement Old Rule – Burden cannot run if benefit is in gross.
§ Modern trend is that the burden can run if the benefit is in gross.

SEPARATE RUNNING OF BURDEN AND BENEFIT

Burden in Gross
Benefit Appurtenant

Benefit in Gross
Burden Appurtenant

Benefit may run even if burden is in gross (never problem net/net gain)

Restatement Rule

Modern Trend

Burden cannot run if benefit is in gross

Burden can run even if benefit is in gross

Touch and Concern – will touch and concern the benefitting property if the servient