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Property II
Wayne State University Law School
Sheppard, Charles B.

*This outline was made for Dean Sheppard’s Fall 2013 Property II course. Specifically, this outline details the portion of the course covering Servitudes.

I.                   Private Land-Use Controls: Rights and obligations regarding the use of land that arise out of private agreements, or by implication, or by conduct.

A.        Servitudes: a right by which something (as a piece of land) owned by one person is subject to a specified use or enjoyment by another. A “servitude” is a burden on an interest in land or other real property (the burdened or servient tenement).

B.        Types of Servitudes:

1.     Easements: an irrevocable right to use someone else’s real property which use would be trespass but for the perfected right.

2.     Licenses: a revocable permission to use someone else’s real property which use would be a trespass but for the permission.

§  A license is irrevocable if coupled with an interest

o   Ex: a right of the licensee that is on the property of the licensor

§  A license may be come irrevocable under the doctrine of estoppel.

o   Ct are split on the issue of how long a license is irrevocable under the estoppel doctrine.

3.  Profits: an irrevocable right to go upon & take something off of the land of another person which activity would be the tort of trespass & conversion but for the perfected right.

4. Covenants: a covenant is a promise. For this class, it is a promise regarding the use of property (the burdened property).

C.    Land use restrictions: An owner might agree to restrict the use of his land by creating a real covenant or an equitable servitude. Traditional, ct were hostile to these restriction due to fear they would impair productive use, but ML recognizes their value in private land use planning, notable their use in CC &Rs
D.   Core Policy underlying American Property: encouraging the productive use of land.

E.    Easements, Licenses, Profits, & Covenants can be analyzed under the following four categories:

1.         Creation:

2.         Scope:

3.         Transferability:

4.         Termination:

A 5th category exists regarding equitable servitudes (types of covenants).

5.         Defenses against enforcement of equitable servitudes:

6.  Enforcement

a.  Theory

b.  Defenses

c.  Remedies
II.        Easements. An irrevocable non-possessory right to use someone else’s real property which use would be trespass but for the perfected right

Types of Easements

Express easements (by grant or by reservation): arises only with the agreement of the owner whose land is burdened.

Implied easements (in fact or by law): are imposed as a matter of law WITHOUT the owner’s agreement.

Easements by Prescription (private or public): an easement may be acquired by adverse use made w/o the express or implied permission of the owner.


i.      Millbrook Hunt v. Smith: The landowner signed a document which gave π right to enter his property & hunt foxes for a term of 75 years, “unless terminated sooner pursuant to the terms of the Lease or pursuant to law.” The land was later sold to Smith, a millionaire businessman. Planning to develop the land into a wildlife preserve Smith tried to exclude the fox hunters. But, Π reserved an absolute right to fox hunt on the remaining parcel of land. The grantor only has the right to redirect the π’s trails “in order to make improvements to the land” & doesn’t have the right to completely exclude π from the property. Furthermore, since the easement granted π the right to use the parcel for a definite period of 75 years it satisfied the requirement that the interest in the land was for some definite period. Hence, π was transferred an easement rather than a revocable license.

Easement types as determined by Nature of the Right:

1.      Affirmative easements: allows the holder to perform an act on the servient land.

1.      “I promise to use my property in the following way…”

2.      A promise by the owner to take action

2.      Negative easements: allows the holder to prevent the servient

s successor may use the land for hiking, fishing, bird watching, hunting, & other nondevelopmental purposes.  The most common negative easement.
IV. Easements.

A.    Express Easements: arises only with the agreement of the owner whose land is burdened.


a.      By Grant or by Reservation: 

i.      By Grant: when the servient owner grants an easement to the dominant owner.

ii.      By Reservation: when the dominant owner grants the servient land to the servient owner, but retains or reserves an easement over that property.

(1)   In favor of the Grantor or Transferor. Permitted in both CL & ML.

(2)   In favor of a “3rd person” or “stranger to the title”:

(1)         CL: a reservation in favor of 3rd party is not allowed

(a)    could only be reserved in favor of the dominant owner

(b)   Prohibits the creation of an easement by reservation in favor of a 3rd party

i.      CL prohibition against reservation of an easement in favor of a 3rd party has been disregarded in some jurisdictions based on public policy [ex: Willard, Pg. 654]
(c)    Re-grant theory: allowed a grantor/transferor to retain an easement in property transferred to another property (i.e. deed), but prohibited reservation of an easement for 3rd parties. Only for the benefit of the transferor/grantor.

(2)        ML: allows easements to be reserved in favor of a 3rd party & in the transferor/grantor.