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

PRIVATE LAND-USE ARRANGEMENTS
I. Servitudes (non-possessory interests)
a. 2 classes of servitudes: Easements and covenants
i. Easements – legally enforceable right to use the property of another
1. 2 Types:
a. Appurtenant –
b. In Gross –
2. Default rule: If ambiguous, courts construe it as appurtenant
3. Duration: Can last same as other interests that creates it says otherwise
4. SOF: EMT needs to be in writing to comply w/ SOF
5. 2 minor categories
a. License –
i. May be created orally, but may be written doc. Key is whether revocable
ii. Revocable at any time, at will, unless:
1. coupled w/ and interest –
a. MI – Probably recognized in MI
2. estoppel applies – licensor is estopped from revoking license if
a. Licensee changes position; AND
b. Licensor knows about it
c. MI – NOT applicable in MI
b. Profit – right to use property by removing an attached product
i. Rules: emt rules apply, writing, etc.
ii. Covenants
1. Real Covenants – run w/ land at law (damages)
2. Equitable Servitudes – run w/ land in equity (injunction)

II. Easements/License/Profit
a. Creation of easements – 3 ways
i. Express – express words, a normal written document (SOF)
1. Deed of easement – Simple form of express easement.
2. Grantor may retain or convey serviant tenement
a. Retain – Grantor delivers deed of easement to DT or holder in gross
b. Convey – Issue over whether there can be easement attached to property at time ST xfers land to someone else. 2 terms:
i. Reservation – Grantor creates new easement in grantor’s favor when conveying ST
1. At CL, you may reserve easement for yourself but not for a 3rd party
ii. Exception – Grantor carves out from grant an existing emt
3. Willard (672) –CA rejected common law rule and said you can do this
a. 4 ways she could have done w/o violating common law rule
i. Could have reserved in favor of herself, then conveyed land, then xfer easement to church
ii. Convey to buyer on condition he grant emt to the church
iii. She could sell to church, which would then sell to buyer and reserve easement i

iii. Necessity existed both at time of severance (the severance landlocked the parcel) AND at time easement is sought (still landlocked). Once the necessity disappears, the easement disappears (prof reiterated)
1. Othen – might be necessary today but since it wasn’t at time of severance
b. Justification – 1) if landlocked, they must have intended emt… 2) economic argument…makes property much more marketable
iii. Prescription – created by analogy to AVP
1. Requirements (Jessie Jackson/George Bush example)
a. Actual use (as opposed to possession for AVP)
b. Exclusive – Doesn’t have to be to exclusion of owner like AVP. Requirement satisfied if no one else but you and true owner use
c. Open and notorious
d. Claim of right – not w/ permission of owner (hardest issue)
Continuous for required period – same as AVP period, 15 years in MI