Covenants, Servitudes, and Easements... Oh my!

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romothesavior
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Covenants, Servitudes, and Easements... Oh my!

Postby romothesavior » Sun Nov 28, 2010 11:01 pm

I am really struggling with the differences. There are just so many categories and nuances. Thankfully, the restatement has done the right thing and eliminated a lot of these categories, but we still have to understand them for the exam. Here is how I have it broken down in my head:

Affirmative Easement: The owner of the easement has a right to enter and/or use the landowner's property
Negative Easement: A landowner is prohibited from particular actions (traditional negative easements pertain to light, air, support, and artificial streams)

Restrictive Covenant: A restraint on the land of another
Affirmative Covenant: An obligation or duty upon the burdened landowner

Equitable servitudes: ???
Covenants Running with the Land: A promise that the parties intended to run with the land

Okay, so what is the difference between a restrictive covenant and a negative easement? What the hell is an equitable servitude, and how is it different from a covenant running with the land? How are covenants running with the land different than appurtenant easements, since appurtenant easements also run with the land? And most importantly, killself now or after finals?

Gracias.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby stratocophic » Sun Nov 28, 2010 11:43 pm

romothesavior wrote:I am really struggling with the differences. There are just so many categories and nuances. Thankfully, the restatement has done the right thing and eliminated a lot of these categories, but we still have to understand them for the exam. Here is how I have it broken down in my head:

Affirmative Easement: The owner of the easement has a right to enter and/or use the landowner's property
Negative Easement: A landowner is prohibited from particular actions (traditional negative easements pertain to light, air, support, and artificial streams)

Restrictive Covenant: A restraint on the land of another
Affirmative Covenant: An obligation or duty upon the burdened landowner

Equitable servitudes: ???
Covenants Running with the Land: A promise that the parties intended to run with the land

Okay, so what is the difference between a restrictive covenant and a negative easement? What the hell is an equitable servitude, and how is it different from a covenant running with the land? How are covenants running with the land different than appurtenant easements, since appurtenant easements also run with the land? And most importantly, killself now or after finals?

Gracias.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby dakatz » Sun Nov 28, 2010 11:45 pm

stratocophic wrote:
romothesavior wrote:I am really struggling with the differences. There are just so many categories and nuances. Thankfully, the restatement has done the right thing and eliminated a lot of these categories, but we still have to understand them for the exam. Here is how I have it broken down in my head:

Affirmative Easement: The owner of the easement has a right to enter and/or use the landowner's property
Negative Easement: A landowner is prohibited from particular actions (traditional negative easements pertain to light, air, support, and artificial streams)

Restrictive Covenant: A restraint on the land of another
Affirmative Covenant: An obligation or duty upon the burdened landowner

Equitable servitudes: ???
Covenants Running with the Land: A promise that the parties intended to run with the land

Okay, so what is the difference between a restrictive covenant and a negative easement? What the hell is an equitable servitude, and how is it different from a covenant running with the land? How are covenants running with the land different than appurtenant easements, since appurtenant easements also run with the land? And most importantly, killself now or after finals?

Gracias.

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Haha, my feelings precisely

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romothesavior
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Re: Covenants, Servitudes, and Easements... Oh my!

Postby romothesavior » Sun Nov 28, 2010 11:46 pm

stratocophic wrote:
romothesavior wrote:I am really struggling with the differences. There are just so many categories and nuances. Thankfully, the restatement has done the right thing and eliminated a lot of these categories, but we still have to understand them for the exam. Here is how I have it broken down in my head:

Affirmative Easement: The owner of the easement has a right to enter and/or use the landowner's property
Negative Easement: A landowner is prohibited from particular actions (traditional negative easements pertain to light, air, support, and artificial streams)

Restrictive Covenant: A restraint on the land of another
Affirmative Covenant: An obligation or duty upon the burdened landowner

Equitable servitudes: ???
Covenants Running with the Land: A promise that the parties intended to run with the land

Okay, so what is the difference between a restrictive covenant and a negative easement? What the hell is an equitable servitude, and how is it different from a covenant running with the land? How are covenants running with the land different than appurtenant easements, since appurtenant easements also run with the land? And most importantly, killself now or after finals?

Gracias.

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This just made my night.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby Renzo » Sun Nov 28, 2010 11:48 pm

An equitable servitude arises from an attempt by parties to create an easement that fails for technical reasons. Essentially the court is saying the fair thing is to enforce in equity the easement that cannot be enforced because of the hypertechnical requirements.

The difference between restrictive covenant and a negative easement has been abolished in the Restatement, and arose historically because an easement was limited to the categories you mentioned.

Get "Understanding Property." It will change your life.

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joobacca
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Re: Covenants, Servitudes, and Easements... Oh my!

Postby joobacca » Sun Nov 28, 2010 11:48 pm

i think equitable servitudes are the way you enforce covenants.

as for restatement, i don't think it's restating the law. it's more of a proposal to simplify a shitty collection of shitty rules, most likely made by shitty people.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby joobacca » Sun Nov 28, 2010 11:49 pm

Renzo wrote:An equitable servitude arises from an attempt by parties to create an easement that fails for technical reasons. Essentially the court is saying the fair thing is to enforce in equity the easement that cannot be enforced because of the hypertechnical requirements.

The difference between restrictive covenant and a negative easement has been abolished in the Restatement, and arose historically because an easement was limited to the categories you mentioned.

Get "Understanding Property." It will change your life.

i wholeheartedly agree with understanding property. i think it's the best hornbook i have purchased so far.

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romothesavior
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Re: Covenants, Servitudes, and Easements... Oh my!

Postby romothesavior » Sun Nov 28, 2010 11:51 pm

Renzo wrote:An equitable servitude arises from an attempt by parties to create an easement that fails for technical reasons. Essentially the court is saying the fair thing is to enforce in equity the easement that cannot be enforced because of the hypertechnical requirements.

The difference between restrictive covenant and a negative easement has been abolished in the Restatement, and arose historically because an easement was limited to the categories you mentioned.

Get "Understanding Property." It will change your life.

Duly noted. I've got the West Nutshell and it has been really helpful, but it doesn't give a great breakdown of the differences on covenants.

And I thought easements that fail for technical reasons (for example, don't meet the SoF) are treated as licenses? Is that not right?

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby Renzo » Sun Nov 28, 2010 11:57 pm

romothesavior wrote:
Renzo wrote:An equitable servitude arises from an attempt by parties to create an easement that fails for technical reasons. Essentially the court is saying the fair thing is to enforce in equity the easement that cannot be enforced because of the hypertechnical requirements.

The difference between restrictive covenant and a negative easement has been abolished in the Restatement, and arose historically because an easement was limited to the categories you mentioned.

Get "Understanding Property." It will change your life.

Duly noted. I've got the West Nutshell and it has been really helpful, but it doesn't give a great breakdown of the differences on covenants.

And I thought easements that fail for technical reasons (for example, don't meet the SoF) are treated as licenses? Is that not right?

Naw, a license is just permission to do something, so that term can mean almost anything.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby romothesavior » Mon Nov 29, 2010 12:00 am

Renzo wrote:Naw, a license is just permission to do something, so that term can mean almost anything.

You sure? My supplement says, "When an attempt to create an easement fails because of noncompliance with the necessary formalities, the grantee acquires a license. A license is revocable unless the licensee has a defense prohibiting immediate revocation."

Grrr.... might have to go talk to my prof, which is something I really don't wanna do.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby Renzo » Mon Nov 29, 2010 12:07 am

romothesavior wrote:
Renzo wrote:Naw, a license is just permission to do something, so that term can mean almost anything.

You sure? My supplement says, "When an attempt to create an easement fails because of noncompliance with the necessary formalities, the grantee acquires a license. A license is revocable unless the licensee has a defense prohibiting immediate revocation."

Grrr.... might have to go talk to my prof, which is something I really don't wanna do.

No, that's not how it was explained to me. Easements were enforced in courts of law, but if you failed to meet the technical requirements, you couldn't get damages. You could, however, apply to a court of equity for an injunction to enforce it as an equitable servitude. People generally preferred the injunction to damages, and once the courts of law and equity merged the distinction became anachronistic, so the Restatement does away with the distinction between the two (along with the privity requirement, if I remember correctly-but this part I'm not sure about).

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby GeePee » Mon Nov 29, 2010 12:13 am

romothesavior wrote:
Renzo wrote:An equitable servitude arises from an attempt by parties to create an easement that fails for technical reasons. Essentially the court is saying the fair thing is to enforce in equity the easement that cannot be enforced because of the hypertechnical requirements.

The difference between restrictive covenant and a negative easement has been abolished in the Restatement, and arose historically because an easement was limited to the categories you mentioned.

Get "Understanding Property." It will change your life.

Duly noted. I've got the West Nutshell and it has been really helpful, but it doesn't give a great breakdown of the differences on covenants.

And I thought easements that fail for technical reasons (for example, don't meet the SoF) are treated as licenses? Is that not right?

No. There are lots of ways courts try to bail out people that fail to make easements in writing.

There are two ways to enforce easements by implied intent:
1. Easement by implication. This is an ex-post analysis of an intent to create an easement, then a visible use of property inconsistent with one party's rights of ownership, and a necessity to have that use continue.

2. Easement by necessity. This arises when the easement is the only way for an owner to have reasonable use of his own land: there needs to be a strict necessity. An example is when one road goes through an area, and a landowner is landlocked so as not to have access to the road. If there is a clear path to that road through another's property, and if it is the only clear path, an easement might be enforced to allow use provided there was some evidence that one was intended to be created.

There are also other ways, such as by prescription. This occurs when a neighbor uses land for a particular purpose beyond the statute of limitations, but not in a way consistent with ownership to gain adverse possession.

You might be getting license from equitable estoppel, which can occur when it would be unjust not to provide the easement in light of significant expenditure or reliance and there has been some license granted for use to start with.

For your OP, the difference between restrictive covenants and negative easements is really non-existent in practice. The two angles really give you the same outcome since easements have expanded beyond the circumstances you've listed.

Equitable servitudes and covenants that run with the land are not really a delineated distinction. After covenants have been formed, parties may seek enforcement by two means: through equitable servitudes or real covenants. Real covenants allow damages at law, while equitable servitudes allow injunctions in equity. Both require the covenant to run with the land if the parties involved are different than the originators. This requires intent to run by the originators and an agreement that touch and concerns the land, or deals with the nature and use of the land itself.

The two differ in their other requirements. Equitable servitudes require only notice to the parties, either through appearing in deeds or through some other form of constructive notice. Real covenants require horizontal and vertical privity of parties.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby joobacca » Mon Nov 29, 2010 12:21 am

i am doing this from memory, so be careful with this. i am going common law.

i assume you're talking real covs, which is a promise about the use of some shitty land that (1) benefits/burdens the original cov makers and also their successors and (2) allows enforcement against folks.

so a real cov is created as follows:
wait, before that, there are three situations you'll need to know.

first, original benefiting party (i think "promisee") seeks enforcement against the successor of the original burdened party (again, maybe "promisor," but who knows...)
second, the promisee's successor seeks enforcement against the original burdened party/promisor.
third, the promisee's successor seeks enforcement against the promisor's successor.

the issue in the first is whether the burden runs; in the second, it's whether the benefit runs; and the third, it's whether both run.

the first situation: the burden running
you need writing and i think that writing show an intent that the original cov makers intended to bind their successors to the shitty cov. there's the "touch and concern" requirement, which is absolute bullshit. then there's HORIZTONAL and VERTICAL privities. and then notice, i think.

now, horiztonal privity:
i'm going CL here because i think there are variations. the original CL rule is this: the original cov makers need a mutual interest in the concerned land. so, promisor and promisee (the originals, don't worry about successors here) need to hold a property interest AT THE SAME TIME. so, original cov makers can be a landlord and tenant (L holds a reversion and T has some leasehold or something). so yea, you need both cov makers to hold a present possessory interest. future interest is kosher. (i think this is also called privity of estate...)

the other approach is successive interests. basically, it's a conveyance of land. i am landowner. i sell my land to you. that is "successive." oh yea, we are the original cov makers.

now, vertical privity:
again, CL approach
successor needs to take the ENTIRE estate in land held by the original cov making party -- obviously, according to this crap approach, if you take less than the entire estate, then there is no vertical privity.

situation two: benefit run or no?
writing, intent, touch and concern, and vertical privity. there is no horizontal privity required. can you figure out why?
if i remember correctly, vertical privity here, for whatever reason, is greatly relaxed. i suspect it's because the benefit is running, and not the burden. so here, in the CL approach, you can succeed to less than the entire estate.

situation three: do one and two. if both work out, then one benefited can enforce for damages against burdened.

now, equitable servitudes. i think this is an enforcement tool or a remedy. actually, i think it's a remedy. not sure. it's easier to enforce this than a COV. and you can enforce a promise that UNDERLIES A REAL COV. you get no money for ES i think. if you can enforce a real cov, then you can get some money. yes, that has to be right. ES is injunction bullshit.

the difference between ES and real cov is ES is easier, i think ES is easier to beat as well, and the injunction/money thing.

ES burden to run: it's... witn (writing intent touch notice); notice how the two shittiest things (horiz and vert) are out on this. that is what makes ES good i guess.

ES benefit to run: it's exactly the same as the benef of real cov running without the notice requirement.

i'm stopping here. please correct me if i'm wrong here. i am on way too much caffeine. i really need to do secured transactions...

edit: you do NOT need original cov makers to hold pres poss interest. that was a typo.
Last edited by joobacca on Mon Nov 29, 2010 12:25 am, edited 1 time in total.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby MBZags » Mon Nov 29, 2010 12:22 am

Fellow 1L here, so don't kill me if I'm wrong about anything.

An equitable servitude is essentially a way of enforcing a promise respecting the use of land, as is the covenant. Both a real covenant and equitable servitude are theories to enforce agreements respecting the use of land. The equitable servitude arose initially in Tulk v. Moxhay because the defendant had notice of the original promise, but there was no mutual privity between the original parties to the agreement, which made it unenforceable as a covenant (in the UK). In a sense, the court put on their equity hat and came up with the equitable servitude in order to give fuller justice to the intent of the original parties to bind their successors.

Requirements for Covenants
-In writing
-Intent to bind successors
-Touch and concern the land
-Horizontal privity between the original parties to the covenant - Essentially, was there a transaction involving the conveyance of an interest in land between the original parties? If yes, horizontal privity exists. Some jurisdictions, such as Massachusetts and the UK require mutual privity, which takes on a narrower scope between the original parties. For mutual privity, the original parties must have held a mutual interest in the same land, e.g. landlord-tenant relationship or an easement. Also, some jurisdictions no longer require horizontal privity at all.
-Vertical privity - This is the relationship between an original covenanting party and his successors. If the successor acquires the entire estate by deed, conveyance, or intestate succession, vertical privity exists. If he acquires less than the entire estate, no vertical privity exists.

Requirements for Equitable Servitudes
In Writing
Intent to bind successors
Touch and concern the land
Notice - Instead of horizontal and vertical privity, an equitable servitude is enforceable if the person taking title has actual, record, inquiry, or imputed notice of the promise.

Covenants are enforceable for damages; enforcement of equitable servitudes typically result in an injunction.

Covenants and negative easements are similar in that they both usually involve an owner's promise to refrain from performing an action on the land. Damages can also be received under both. The requirements for a covenant are obviously different from the requirements to create and enforce a negative easement. Also, negative easements are typically limited in scope to four types: preventing the promisor from blocking air, windows, or water in a defined channel, and from removing support for a building.

Appurtenant easements v. real covenants:
An easement is a non-possessory right to use land in the possession of another for a limited purpose whereas a covenant is a promise concerning the use of land that benefits and burdens the original parties and their successors. I know that's not directly responsive to your question, but listing both definitions seems to help differentiate between the two.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby romothesavior » Mon Nov 29, 2010 12:29 am

As for the licenses thing, I think they are treated as licenses if there is no reason to enforce it under doctrines of necessity or estoppel. I know I am right about easements that fail to meet the SoF being treated as licenses, because I'm reading it straight out of the book.

From my casebook: "If two parties attempt to create an easement through an oral contract, their efforts will usually be interpreted as creating a license..."

From the Nutshell: "When an attempt to create an easement fails because of noncompliance with the necessary formalities, the grantee acquires a license. A license is revocable unless the licensee has a defense prohibiting immediate revocation."

To all of you who have answered, thanks for your help! I think I'm starting to get a better grasp of it. It is really the only area of property I am struggling with, so once I get it down I should be good to go. Good luck to all of you other law students (especially 1Ls) with your upcoming finals.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby joobacca » Mon Nov 29, 2010 12:30 am

romothesavior wrote:As for the licenses thing, I think they are treated as licenses if there is no reason to enforce it under doctrines of necessity or estoppel. I know I am right about easements that fail to meet the SoF being treated as licenses, because I'm reading it straight out of the book.

From my casebook: "If two parties attempt to create an easement through an oral contract, their efforts will usually be interpreted as creating a license..."

From the Nutshell: "When an attempt to create an easement fails because of noncompliance with the necessary formalities, the grantee acquires a license. A license is revocable unless the licensee has a defense prohibiting immediate revocation."

GeePee, thanks for the answers to those questions. I think I'm starting to get a better grasp of it. It is really the only area of property I am struggling with, so once I get it down I should be good to go. Good luck to all of you other law students (especially 1Ls) with your upcoming finals.


yes, the classic example of "two neighbors talking over the fence" creates a license. you probably might want to know when the license becomes irrevocable.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby GeePee » Mon Nov 29, 2010 12:31 am

romothesavior wrote:As for the licenses thing, I think they are treated as licenses if there is no reason to enforce it under doctrines of necessity or estoppel. I know I am right about easements that fail to meet the SoF being treated as licenses, because I'm reading it straight out of the book.

From my casebook: "If two parties attempt to create an easement through an oral contract, their efforts will usually be interpreted as creating a license..."

From the Nutshell: "When an attempt to create an easement fails because of noncompliance with the necessary formalities, the grantee acquires a license. A license is revocable unless the licensee has a defense prohibiting immediate revocation."

To all of you who have answered, thanks for your help! I think I'm starting to get a better grasp of it. It is really the only area of property I am struggling with, so once I get it down I should be good to go. Good luck to all of you other law students (especially 1Ls) with your upcoming finals.

I guess I see what you're saying now. Licenses are revocable-- that's really the difference between them and easements. Therefore, failed easements are just revoked licenses. This seems like a pretty meaningless characterization ex post, but it does at least make sense.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby romothesavior » Mon Nov 29, 2010 12:45 am

Despite all the good responses, strato still wins.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby stratocophic » Mon Nov 29, 2010 1:57 am

romothesavior wrote:Despite all the good responses, strato still wins.
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Re: Covenants, Servitudes, and Easements... Oh my!

Postby vanwinkle » Mon Nov 29, 2010 2:05 am

GeePee wrote:Equitable servitudes and covenants that run with the land are not really a delineated distinction. After covenants have been formed, parties may seek enforcement by two means: through equitable servitudes or real covenants. Real covenants allow damages at law, while equitable servitudes allow injunctions in equity. Both require the covenant to run with the land if the parties involved are different than the originators. This requires intent to run by the originators and an agreement that touch and concerns the land, or deals with the nature and use of the land itself.

The two differ in their other requirements. Equitable servitudes require only notice to the parties, either through appearing in deeds or through some other form of constructive notice. Real covenants require horizontal and vertical privity of parties.

This is a good breakdown. You have one writing, and you can attempt to enforce it as either a covenant or an equitable servitude. You just have to meet the requirements for each.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby romothesavior » Mon Nov 29, 2010 2:17 am

vanwinkle wrote:
GeePee wrote:Equitable servitudes and covenants that run with the land are not really a delineated distinction. After covenants have been formed, parties may seek enforcement by two means: through equitable servitudes or real covenants. Real covenants allow damages at law, while equitable servitudes allow injunctions in equity. Both require the covenant to run with the land if the parties involved are different than the originators. This requires intent to run by the originators and an agreement that touch and concerns the land, or deals with the nature and use of the land itself.

The two differ in their other requirements. Equitable servitudes require only notice to the parties, either through appearing in deeds or through some other form of constructive notice. Real covenants require horizontal and vertical privity of parties.

This is a good breakdown. You have one writing, and you can attempt to enforce it as either a covenant or an equitable servitude. You just have to meet the requirements for each.

That's kinda what I thought, cool. I just need to make sure I understand this privity stuff for covenants and I'll be all set.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby Borhas » Tue Nov 30, 2010 11:53 am

there's basically no difference between covenants and equitable servitudes, I think the distinction was one of the court of law v. court of equity things... but it's been completely abandoned. Course, your class may still want you to know the difference... and there are different remedies available based on whether you have vertical and horizontal privity, but the "modern trend" is to allow damages even when both aren't met because courts rather give damages than injunctions anyway.

romothesavior wrote:
Renzo wrote:An equitable servitude arises from an attempt by parties to create an easement that fails for technical reasons. Essentially the court is saying the fair thing is to enforce in equity the easement that cannot be enforced because of the hypertechnical requirements.

The difference between restrictive covenant and a negative easement has been abolished in the Restatement, and arose historically because an easement was limited to the categories you mentioned.

Get "Understanding Property." It will change your life.

Duly noted. I've got the West Nutshell and it has been really helpful, but it doesn't give a great breakdown of the differences on covenants.

And I thought easements that fail for technical reasons (for example, don't meet the SoF) are treated as licenses? Is that not right?


there are lots of different easements that don't require any writing

prescriptive easements
implied easement from prior use
easement by necessity
easement by estoppel

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romothesavior
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Re: Covenants, Servitudes, and Easements... Oh my!

Postby romothesavior » Tue Nov 30, 2010 12:37 pm

Borhas wrote:there are lots of different easements that don't require any writing

prescriptive easements
implied easement from prior use
easement by necessity
easement by estoppel


Yeah I know. But because the rules governing the conveyance of easements is similar to that of conveyance of other real property interests, if two parties attempt to create an express easement via oral agreement, it is simply a license. You couldn't argue prescription because it wasn't hostile (the landowner gave you consent to do it). You could argue on the other three doctrines (prior use, necessity, estoppel) but absent a finding on those three, it is a license and is revocable. Not sure why people think that is false, I am literally reading it out of my casebook and the nutshell.

there's basically no difference between covenants and equitable servitudes, I think the distinction was one of the court of law v. court of equity things... but it's been completely abandoned. Course, your class may still want you to know the difference... and there are different remedies available based on whether you have vertical and horizontal privity, but the "modern trend" is to allow damages even when both aren't met because courts rather give damages than injunctions anyway.


Yeah, this is definitely true. I realized that the difference was eliminated (the Restatement has done away with the distinction and most courts enforce covenants as equitable servitudes), but I still spent all this time trying to figure out the difference just because it might come up on the exam. Thankfully, the prof went on a mini-rant today about how stupid the distinctions were and told us to just understand the very basic differences. It sounds like he just wants us to treat covenants under principles of equity and not focus too much on privity/real covenants.

Again, thanks for all the responses guys. TLS is really a great resource.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby Borhas » Tue Nov 30, 2010 1:48 pm

Yeah I know. But because the rules governing the conveyance of easements is similar to that of conveyance of other real property interests, if two parties attempt to create an express easement via oral agreement, it is simply a license. You couldn't argue prescription because it wasn't hostile (the landowner gave you consent to do it). You could argue on the other three doctrines (prior use, necessity, estoppel) but absent a finding on those three, it is a license and is revocable. Not sure why people think that is false, I am literally reading it out of my casebook and the nutshell.

not saying it's false, just that writing can't be generalized to be a requirement for every or even most types of easements.

conveying an easement generally requires written instrument... except for the easements by necessity anyway, a necessary easement is conveyed with every parcel that goes to a different owner unless expressly written that it's not (and even then courts may find that unenforceable)... and it lies dormant until it's needed. Implied easements from prior use are created through a conveyance without writing... but they aren't really conveyed, I guess retained is a better word.

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Re: Covenants, Servitudes, and Easements... Oh my!

Postby GeePee » Tue Nov 30, 2010 9:12 pm

Borhas wrote:
Yeah I know. But because the rules governing the conveyance of easements is similar to that of conveyance of other real property interests, if two parties attempt to create an express easement via oral agreement, it is simply a license. You couldn't argue prescription because it wasn't hostile (the landowner gave you consent to do it). You could argue on the other three doctrines (prior use, necessity, estoppel) but absent a finding on those three, it is a license and is revocable. Not sure why people think that is false, I am literally reading it out of my casebook and the nutshell.

not saying it's false, just that writing can't be generalized to be a requirement for every or even most types of easements.

conveying an easement generally requires written instrument... except for the easements by necessity anyway, a necessary easement is conveyed with every parcel that goes to a different owner unless expressly written that it's not (and even then courts may find that unenforceable)... and it lies dormant until it's needed. Implied easements from prior use are created through a conveyance without writing... but they aren't really conveyed, I guess retained is a better word.

It doesn't make sense to think about easements in this manner. There is never an easement until it is put into writing. Generally, we like the parties to put it into writing themselves. However, if they do not, there is no easement. There may be an open license for a particular use, but a writing is necessary. In some cases, when circumstances demand and parties renege on their granted license, a party may sue to have the court create an easement for the parties by necessity, prescription, implication, or estoppel.

There are plenty of ongoing agreements that carry on just fine without being easements. But there is never an easement until either the parties or the court says there is one.




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