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

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

Postby underdawg » Wed Dec 01, 2010 3:08 am

i found this shit 1000x more confusing than rule against perpetuities or erie. never really got negative reciprocal easements or whatever those cases about subdivisions were about

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

Postby Borhas » Wed Dec 01, 2010 5:14 am

GeePee wrote:
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.


ehhh not really that's like saying there's no murder until there is a conviction

yeah an ongoing agreement is not the exact same thing, and neither is an easement, but the rights associated with an easement exist before the court says they do...

at least that how I think of it, makes sense to me

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

Postby Melkaba » Wed Dec 01, 2010 12:05 pm

Borhas wrote:ehhh not really that's like saying there's no murder until there is a conviction

yeah an ongoing agreement is not the exact same thing, and neither is an easement, but the rights associated with an easement exist before the court says they do...

at least that how I think of it, makes sense to me


Well, on that point, the five negative easements that we covered (Light, Air, Support, Stream, and Conservation Easements) do have to be in writing. But I do agree that it's a strange way to look at easements even if it does make sense (especially since if writing isn't a factor, all the court is going to say is that there was an easement all along and wouldn't necessarily be creating a new one, but that's an unknown-unknown argument I really don't feel like traveling down).

Also, I got the just of an equitable servitude and I think I can prevent confusing myself on the entire Restrictive Covenant v. Negative Easement if I just confine negative easement to LASS + Conservation with Restrictive Covenants picking up everything else. So is the only difference between Equitable Servitudes and Real Covenants when it comes down to it simply the privity requirement?

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

Postby romothesavior » Wed Dec 01, 2010 4:43 pm

GeePee wrote:
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.


+1. This is correct.

And yeah melkaba, that is really the only difference. Mandelker also says that real covenants can be enforced without privity if there is evidence of a planned community type of situation, but I think that is just another way of saying it can be enforced as a servitude through equitable principles.

In any case, I talked to him in his office and he basically just said that as long as you can understand the basic differences, you're fine. He said that he thinks the differences are really pointless and confusing even to him, and he likes what the Restatement has does by merging the concepts. He said that since the overwhelming number of real covenants can be enforced in equity, and since an injunction is what parties typically want, that is what we'll be dealing with most of the time. I think as long as we can articulate the basic points that have been discussed ITT, we'll be more than fine. (And with only 300 words to answer a question, I don't think it would be possible to go into much more depth anyways.)

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

Postby Borhas » Wed Dec 01, 2010 7:00 pm

Melkaba wrote:(especially since if writing isn't a factor, all the court is going to say is that there was an easement all along and wouldn't necessarily be creating a new one, but that's an unknown-unknown argument I really don't feel like traveling down).


I can't bear looking at any more criminal law at the moment so I'll have a go at this

If you think of an easement as a set of rights to use a portion of another's land then whether or not you decide to enforce those rights through a court doesn't really change whether you had those rights or not in the first place. If you didn't have those rights in the first place then the court couldn't justify your continued right to use from prior right to use... so they would basically say you didn't have a right all that time but now you magically do. This might make sense in the case of prescriptive easements, but it doesn't make sense in the case of Implied easements because it effectively requires the court to protect a right, but that the right doesn't exist until the court protects it... that's circular.




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