Easements Easements considered USE right; NOT a possessory right (can use, don t own) Appurtenant easement Easement in gross -

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1 Easements If riginal wner has pssessry rights, is sufficient fr easements; it des NOT have t be FSA. - Easements cnsidered USE right; NOT a pssessry right (can use, dn t wn) - True wners cnsider multiple factrs when deciding whether t accept an easement ffer; ne factr is, will the easement interfere with my intentins f the use f the prperty? Easements can be EXCLUSIVE t the hlder (nly hlder can use), BUT mre likely easements will NOT be exclusive (true wner can als use, alng with anyne under the interests f the true wner). Typically, use rights are limited t the parties INTENTIONS, with sme flexibility. Re-negtiatins pssible, but until negtiatins, parties can t assume r enlarge easement w/ expressly agreeing/negtiating w/ ther parties invlved. Appurtenant easement- easement whse benefits serve a parcel f land; it serves the wner f that land in a way that CANNOT be separated frm the wner s rights in the land. - It in fact becmes a right in that land and PASSES WITH TITLE. Easement in grss -easement whse benefits serve their hlder ONLY PERSONALLY, NOT in cnnectin with his wnership r use f any specific parcel f land. 7.4 Scpe f Easement Rights ( n.3, n.3, n.2) Express Grant: scpe determined by terms f grant. (parties are nt always clear in their intentins). - Existing uses: uses at time f express grant imply scpe f easement. - Help curts understand the scpe f the parties intentins at the time f cnveyance. Appurtenant easement: may NOT be extended by the dminant wner t ther parcels she wns - Cnstitutes a misuse, and a trespass, f the servient prperty and is prhibited (Brwn, 860) - As a general rule, an easement appurtenant t ne parcel f land may nt be extended by the wner f the dminant estate t ther parcels wned by him, whether adjining r distinct tracts, t which the easement is nt appurtenant. - Even a minr technical misuse is still cnsidered a misuse (i.e. still trespass). Fcus is n the rights f the parties, NOT the burdens n the servient prperty. - BUT, subdivisin f the dminant parcel may (and has been) be allwed (page 863, nte 2). Unless language t cntrary, curts assume parties anticipated dminant parcel culd be subdivided. - Nte 2 (863): If dminant parcel is subdivided int several parcels, the usual result is that subdivisin des NOT per se prevent the easement serving the individual parts. If develpment f subdivisin will cause easement t be used beynd ways that might have been rxbly anticipated then the excess use wn t be permitted. Different frm Brwn: dminant parcel being subdivided v. 3 rd parcel invlved. Brwn ( /dminant wners) v. Vss ( /servient wners) Rule: 1) Easement appurtenant t 1 parcel f land may nt be extended by dminant estate wner t ther parcels wned by him, whether adjining r distinct tracts, t wh/ easement is nt appurtenant. If easement is appurtenant t parcel f land, any extensin t ther parcels is a MISUSE f the easement. 1a) Brwn curt: despite vilating the general rule supra, curt allwed t use parcels B & C as lng as used thse parcels fr a single-family residence. (nt majrity rule, just this case) Changes Over Time - parties have NOT anticipated n and specified in the dcument n specific uses; Changes in Use: assume parties intended changes in an easement use necessary fr rxble ccupatin and enjyment in the dminant estate in the future. - Curts generally hld that parties K and negtiate with an understanding that the future will change 1

2 Assumed t anticipate ptential need fr the uses f the easement t change in rder t make rxble enjyment f the dminant prperty in the future. - Curts will allw new changes if change(s) fall w/in this ratinale (ex: a right f way fr an x cart can rxbly include the right fr a car t use the right f way). Camern v. Bartn Rule: a) If an easement created by cnveyance, add t/diff. uses f the servient prperty due t changes in the character f the dminant tenement are permitted, the interpreter is warranted t assume the parties t the cnveyance cntemplated a nrmal develpment f the use f the dminant tenement. b) as the passage f time creates new deeds and the uses f prperty change, a nrmal change in the manner f using a passway des NOT cnstitute a deviatin frm the riginal grant, and mdern transprtatin uses are nt restricted t the ancient mdes f travel. Overburdening NOT allwed, but mere increase in the vlume f traffic is NOT verburden per se (unless the increase in traffic is incredibly significant) - Prescriptive easements: ONLY small and insubstantial changes cnsistent with the use pattern that frmed the easement are allwed (ex: hrse trail becmes a walking trail) substantial changes are NOT favred by curt Changes in Lcatin: if express grant des NOT set lcatin, servient wner is entitled t develp her estate by making rxble changes. - If express grant sets lcatin, then cmpeting rules: MPM & Lehner - Majrity rule (Lehner)= servient wner des NOT have unilateral pwer t change lcatin and dimensin because the initial grant set ut thse terms f lcatin and dimensins f the easement (unless the parties cme t a mutual agreement) Rejects MPM - MPM Minrity Rule: Unless EXPRESSLY denied by terms, servient estate entitled t make rxble changes t easement, at wn expense, t permit nrmal use/develpment, but nly if DON T significantly lessen the utility f the easement, increase burdens n the wner f the easement in its use and enjyment, r frustrate the purpse fr which the easement was created Servient estate wner must btain a declaratry judgment if bth parties CANNOT cme t a meeting f the minds. Easement hlder has the burden f bringing suit against unrxble lcatin. - Parties can renegtiate at any time 7.5 Extinguishing Easements ( , ) - limiting the length and/r terms f easements is becming mre cmmn. 1. Terminates by its wn terms ( fr 5 years ) (may affect price; might be cheaper than perpetual easement with n limits). 2. Terminatin by WRITTEN Release (mutual agreement): easement hlder releases servient estate wner frm encumbrance. - SF applies (b/c land). If easement wner purprts t release it, but nly by statement, the easement remains in effect. But estppel culd trump SF if servient land wner had a rxble and detrimental reliance n the ral statement f release. 3. Merger: hlder assumes title f servient estate. - If easement wner becmes wner f servient prp., r the dminant and servient prps cme int the same wnership, easement terminates. ( Can t have an easement n yur wn land ). If the easement is terminated, a future prperty buyer will NOT receive the easement. 2

3 4. Abandnment (nt favred in the law with respect t real prperty rights): - a) nn-use (fr a fairly lng perid f time that suggests n future use f easement); and - b) physical act(s) manifesting easement hlder s intentin t abandn the easement rights Can als be verbal smetimes, as lng as intent t abandn is expressed Affirmative actin= ding smething t indicate intent (fence/wall) Negative actin= nt ding smething (failure t bject t bstacles) - Surface vs. Subsurface estates UNLESS there has been a severance, assumed that prperty wner wns a UNIFIED estate with bth the surface and subsurface estates. Subsurface mineral rights can be ABANDONED. B/c easements NOT estates, yu can abandn the right t use anther persn s land. REMEMBER: Nn-use is NOT sufficient n its wn t cnstitute abandnment f the easement. HOWEVER, if a PRESCRIPTIVE easement, then nn-use alne DOES cnstitute abandnment Hickersn Rule: a) Easement can be eliminated via abandnment when the easement wner allws/ acquiesces servient wner t build permanent bstructins (N actin = manifestatin f intent t abandn) b) Easement can als be terminated via adverse pssessin if the servient wner shws exclusive, actual, hstile, pen, and cntinuus pssessin fr the required statutry perid f time. A change in the type f business culd still be acceptable fr an easement use b/c the use f the easement was always used fr business, a curt culd hld that the new venue f business is acceptable as lng as the new business des nt place an undue burden n the easement hlder. Taking: cnstitutinal limit n freclsing abandnment s benefits t servient wners Nrdhus v. United States Rule: a) t cnstitute abandnment, there must be a uniting f intent t renunce all interest in the right-f-way with a clear and unmistakable intent t carry ut that intent. b) cnveying an interest in land t anther party is clear evidence f abandnment, particularly when the new use if fr a different purpse 8.1 Intrductin t Cvenants Running with Interests in Land ( ) - If riginal L and riginal T are still in pssessin, interest running with the land is irrelevant until the riginal L and riginal T cnvey their interests t successrs. - Befre discussing interests that run with the land, we must first: a) Identify wh/ parcel/interest in the land is benefitted and wh/ is burdened by the cvenant; b) Determine whether either r bth f thse parcels r interests have been transferred; c) And decide whether we need t determine if either the benefit r the burden (r bth) runs. If smene nt the riginal prmisee allwed t enfrce a K respecting land, r nt the Benefit (prmise t pay rent) Burden L T1 L2 riginal prmisr is bund by it, the K is a cvenant running with the land. A real cvenant wh/ binds/benefits successr wners Distinguish frm persnal cvenant (wh/ des NOT run t successrs) - EVERY cvenant has bth a BENEFIT (held by prmisee) and a BURDEN (held by prmisr). It is NOT the cvenant that may be running, but rather 2 quite distinct aspects f the T2 3

4 cvenant: the BENEFIT side and the BURDEN side. Des NOT necessarily run with the land, but rather with sme particular estate r interest in the land that riginally was held by ne f the parties wh entered int the cvenant. Thrustn v. Minke Hlding: Cvenant still benefitted L s adjacent htel, and b/c L still wned the htel, he still had the benefit f the cvenant and culd maintain his actin fr an injunctin against T. Easements vs. Cvenants - bth have ptentially similar capabilities; Bth are widely regarded as interests in the land itself, rather than mere cntract rights. This is imprtant fr 2 reasns: 1) SF applies t the creatin f bth, at least if they are created expressly. If express easements r cvenants affecting land have a duratin lnger than ne year, they must be created by A WRITING t be enfrceable (unless exceptin). 2) B/c bth easements and cvenants are interests in land, equitable remedies (injunctins) generally are available t enfrce them. Based n the ntin that land is UNIQUE s remedy at law (damages) is never fully adequate, and the claimant whse easement is interfered with r whse cvenant is vilated usually can btain an injunctin. Why is land UNIQUE? a) they ain t makin it anymre, b) n 2 parcels are in exactly the same spt - Negative easements basically restrictive cvenants; negative easements = restrictive cvenants Easements and cvenants cllectively are ften called servitudes. 8.2 Cvenants Between Landlrds and Tenants ( , ) Careful language: These cvenants shall run with the respective interests f the parties and shall bind and benefit their heirs, successrs, and assigns. - BUT if that clause is left ut, curts usually will find the necessary intent anyway. Ex: A prmise by L/T: that have been held t tuch and cncern, aka run w/ the leasehld r reversin: -Tenant t pay rent r (in the case f a mineral lease) ryalties. -Tenant t pay taxes n the leased premises. -Landlrd/tenant t repair premises, r d/refrain frm, sme act affecting premises physical cnditin. -Landlrd t prvide services, such as heat, water, etc., t the premises. -Tenant nt t assign r sublet, r nt t d s withut cnsent f the landlrd. -Landlrd t renew the lease r cnvey the reversin t the tenant. - Idisyncratic cvenants that have nthing t d with the real estate prbably d NOT tuch and cncern land (ex: L cvenants t paint T s prtrait r drive the T s children t schl each day). Abbtt v. Bb s U-Drive Rule: a) Smene ther than lessee pssesses leased premises & pays rent t the lessr, is presumed that the lease was assigned t pssessr. Mdern rule = implied assignment frm pssessin regarded as effective basis fr the running f cvenants t burden/benefit assignee. Implied assignment carries w/ it liability n the cvenants wh/ run w/ the land; The ccupatin f the premises and the payment f rent sufficient t take the case ut f SF. b) (i) Bigelw test: parties legal relatins; if prmisr s legal interest as wner f the land in questin is rendered LESS valuable by the prmise, the burden f the cvenant tuches r cncerns that land. If the prmisee s legal interest as wner f the land in questin is rendered MORE valuable by the prmise, the benefit f the cvenant tuches r cncerns that land. (curt des NOT favr this test 4

5 as much as the Clark test). (ii) Clark test: a cvenant shuld be held t tuch and cncern the land if the parties, as LAYMEN and NOT lawyers, regard the cvenant as intimately bund up with the land, benefitting the prmisee as landwner r burdening the prmisr in similar capacity. (curt favrs this test here and als applies it t assignees as well, nt just riginal parties). >>> UNLESS L prvides a nvatin (an express release f liability by the L), a T wh assigns the leasehld des NOT escape liability n the riginal lease cvenants. The burdens f thse cvenants may run, and may becme liabilities f the assignee, but they remain liabilities f the assignr as well. - T 1 remains in privity f K even thugh assigned leasehld & n lnger in privity f estate T 1 signed the lease and undertk a K duty t L, and ne is NOT relieved f K duties by making an assignment f the K. - Usually nly a NOVATION will allw the assigning tenant t escape liability. - T 1 wh makes an assignment f the leasehld can als escape liability if L and T 2, WITHOUT T 1 cnsent, mdify the lease terms AFTER the assignment has taken place. - UNLESS L s cnduct assciated w/ breach, L is NOT bund t an implied lease cvenant when he transfers the prperty. Tuch & Cncern Requirement Burtn: cvenant by T t insure premises fr L s benefit is persnal and des NOT tuch and cncern T s estate, UNLESS there is bligatin t use the insurance $ t repair physical damage. - Burtn rule = T s cvenant t pay $ will tuch & cncern nly if $ must be used n land. - UNLESS lease cntains clause requiring frfeited depsit be used fr repairs t premises, an assignee shuld NOT be bund t that lessr s prmise t refund a lessee s security depsit. - W/ clause requiring the depsit be used fr repairs t premises, the prmise t refund depsit usually treated merely as a prmise t pay mney, and is said t be uncnnected t the land. Castlebrk: if L 1 transferred the security depsits t L 2, L 2 will be liable t refund t Ts. - Shuld the benefit f the cvenant t refund the security depsit run with the tenant s estate if the tenant makes an assignment? Curts say cvenant des NOT tuch and cncern, and that assignee cannt demand the refund UNLESS T 1 EXPRESSLY assigned that right. - debate n whether business-riented cvenants tuch and cncern land Tippecane v. Kimc Rule: a) even if restrictive cvenant viewed as unfavrable, equity requires curt t enfrce restrictive cvenants when the restrictins are unambiguus and d NOT vilate public plicy. Cvenants that restrict business generally d NOT vilate public plicy. BUT, a cvenant that did nt riginally vilate public plicy can begin t vilate public plicy if surrunding area changes in ways that are s radical in nature that the riginal purpse f the cvenant has been defeated. b) One f the main purpses f restrictive cvenants is t maintain r enhance the value f land by cntrlling the nature and use f lands subject t a cvenant s prvisins. s diminutin in value is NOT sufficient justificatin fr declaring a restrictive cvenant unenfrceable Restrictive Cvenant Summary explanatin - Negative cvenant: prhibit ne f the parties frm ding sme act. - Affirmative cvenant: require ne f the parties t perfrm sme act. - Restrictive cvenant: prhibit ne f the parties frm using the prperty in a particular manner. Real vs. Persnal Cvenants: A cvenant runs with the land (real cvenant) IF: a) the riginal cntracting parties INTENDED it t run with the land; b) the cvenant tuches and cncerns the land; c) & there is PRIVITY OF ESTATE b/t subsequent grantees f the cvenantr and cvenantee. 5

6 - Bth the benefits and burdens f L s cvenants run t L 2 n the same thery as n the T s side f the transactin. The same 3 tests be met. L 2 liable nly fr breaches that ccur AFTER the transfer f the land and NOT fr breaches befre the transfer, unless the successr expressly assumes greater liability. Vertical Privity n Landlrd s Side: Majrity f transfers by L are f the entire set f interests they wn. 8.3 Cvenants Between Owners Theretical Justificatins fr Running Cvenants - Case Therem: Ecnmically efficient t let landwners negtiate t reduce externalities caused by ne that impacts thers Idea that ne persn s use f prperty may negatively impact his neighbr. Law shuld get ut f the way f private prperty wners t negtiate freely fr what they perceive is an ecnmically efficient circumstance/situatin; OR, if the law des NOT get ut f the way, the law shuld facilitate that pen and free negtiatin t cme t that ecnmically efficient cntext. - C-stre ex: Residential area, c-stre is prpsed. C-stre will likely de-value neighbr prperty. Therem- prperty wners surrunding the c-stre jin tgether t negtiate w/ the wner. Pay ENOUGH NOT t build: bth c-stre wner and the prperty wners benefit. L 1 T 1 $20K FMV X C-stre L 2 T 2 $100K fmv Des cvenant hld b/t these 2 parties? - X sells t Y all 9 parties are better ff nly if cvenant transfers t Y - Balance f equity v. alienability f prperty Restrictive Cvenant - May limit alienability n burden side, may increase alienability n benefit side $20K FMV X Y C-stre $100K fmv R Q - 1 way cvenant fr X nt t build C-stre - Til X cnveys n questin f interest running - Burden n X s prperty b/c he prmised t limit the alienability f land (by nt building) - If desn t decrease value f neighbr s land, then effectively increase /benefit land If cvenant b/t X & R isn t enfrceable, then wn t be enfrceable w/ Q Cmmn residential cvenant = setback requirement - Recall cntext: plicy questin is whether later grantees are bund r benefitted by cntractual prmises made by the riginal parties BUT, if the cnvenience stre wner sells t anther party, is the negtiatins made between the riginal cnvenience stre prperty wner and the surrunding prperty wners BINDING ON THE NEW PARTY that wns the cnvenience stre prperty???? - Cunter plicy AGAINST allwing cvenants t run: restrictive cvenants implicate alienability f burdened prperty (but als Increase value f benefitted prperty) the law encuraged limits n restrictive cvenants. BUT the value f the BENEFITTED prperty INCREASES here as well (i.e. tensin here). Requirements fr Cvenants t Run Must meet all 3 [Enfrceable b/t riginal cvenantrs Cntract law, SF] 6

7 X R (Hrizntal) Y Q (Vertical) 1. Intent: Original parties intended cvenant t run (bind successrs); need nt be expressly stated - Assumed t exist (fr cvenants that meet ther 2 requirements) Stebuck - Often implied by the fact that a cvenant tuches and cncerns land 2. Tuch & Cncern: Cvenant s related t land as t enhance its value and cnfer a benefit n it; classic example is a restrictin f use n ne parcel - Real cvenant dealing with real prperty (distinguish frm persnal cvenant)- - What matters is that the cvenant affects the LAND, NOT the hlder/wner! intrinsic value f land frm the cvenant - Meant t distinguish frm a PERSONAL cvenant Tuch and cncern attempts t make the cvenant REAL as ppsed t persnal. 3. Privity: Cgnizable & legal relatinship recgnized by law that allws an expectatin t be created. - 2 Kinds required: Deep Water Hrizntal= exchanges/transfer f all real prperty interest with cvenants/prmises b/t the ORIGINAL COVENANTING PARTIES. Vertical= exchanges/transfers f all real prperty interest between ORIGINAL wners AND CURRENT litigants Cvenant Waiver & Abandnment - Essentially the same basic cntext: A prmise made b/t 2 parties included a cvenant restricting ne r bth frm a particular kind f use related t the land. Questin is if circumstances, since the riginal prmise, have led t the pint where curt shuld n lnger enfrce the prmise Tippecane - we STRICTLY cnstrue restrictive cvenants because they limit alienability f prperty Lk at cvenant clsely t ensure it s clear; if expectatins clear, the cvenant will be upheld and NO sufficient changed circumstances requiring law intervene. Pietrwski curt desn t necessarily state affirmative rule, mre f a NEGATIVE RULE; - Cvenant Waiver: n waiver simply b/c wner desn t act n vilatins nt affecting her; nr d wner s wn immaterial, insignificant vilatins cnstitute waiver COULD waive cvenant enfrcement rights if wner did NOT enfrce/insist n enfrcing a majr/material vilatin that affected wner hlding the cvenant enfrcement right. - Cvenant Abandnment: n enfrcement where neighbrhd character changed s as t make accmplishing the purpse f cvenant impssible Curts are usually specific and lk fr specific aspects f cvenant abandned, NOT entire cvenant: Individual restrictins nt en masse Typically when a cvenant intended fr RESIDENTIAL use is w/in a mainly INDUSTRIAL area nw. Wuld cnstitute a substantial enugh change in neighbrhd character. - Acquiescence: Cvenant wner acquiesces/allws vilatin f cvenant fr a certain perid f time, curts might ablish enfrcement rights f restrictive cvenant due t inactin f wner. - Unclean Hands Dctrine: thery that if the cvenant wner vilates the very restrictins w/in same cvenant, that wner shuld NOT be able t enfrce the cvenant restrictins Cvenant rights are waived Usually nly apply if cvenant wner s vilatins against cvenant are majr/material. Pietrwski- Vilatrs were frced t raze garage b/c were aware f cvenant and built anyways Deep Water: the bna fide purchaser (Taylrs) were allwed t keep their cnstructed huse, despite vilating the height limit in the restrictive cvenant. (b/c were unaware f the cvenant) 7

8 At Law v. In Equity Remedy - Usually have t give ntice t gv f cnstructin S knwledge f building is presented t cmmunity t bring frward cvenant Distinctin b/t gv zning and private/residential cvenants - at law - the cvenant will run with the land; it des NOT mean that the π is limited t damages as a remedy because it will generally be enfrceable in equity if the π prefers an injunctin. - in equity - the π CANNOT recver damages and is limited t EQUITABLE relief (primarily in the frm f an injunctin). 9.1 Nuisance Law ex: Pig in the Parlr - Part Trt- liability arises frm negative r therwise wrngful activity - Part Prperty- liability arises frm interference with an wner s use and enjyment f land - Ancient Maxim: use prperty in a way that desn t injure thers in the use f their prperty Nuisance law is REACTIVE, while zning law is PROACTIVE. Zning= Gv Nuisance Law = CL A B - Implicit assumptin nt t interfere with neighbrs use f their land - Cntext/Lcatin is key Intentinal Nuisance - Intentinal: Actr knws the harm results r is substantially certain t result frm actins - Unreasnable: when the gravity f the harm utweighs the utility f s actins Gravity f harm includes scial value f π use (making cmparisns) Utility f s actins include scial value f s use - Objective Test FMV is best bjective indicatin f nuisance Penland v. Redwd Sanitary Dist. - District cmpsted sludge, heap pile 9 ft. high, 20 ft. wide, & 100 ft. lng- Stays 90 days - Private Nuisance: whether activity substantially & unreasnably interferes with the use & enjyment f π prperty - Factrs (Oregn): 1) Lcatin f nuisance (pig in pig sty r parlr ) 2) Character f neighbrhd 3) Nature f the things cmplained f part f same questin 4) Frequency f intrusin 5) Effect n π enjyment f life health & prperty Unlawful criminal, unlawful = unreasnable Bmer v. Atlantic Cement C. (trespass as well as nuisance case) - Cement manufacturing plant emits particulates, gases, vibratins & nise affecting residential use f 8 families - Issue= what is apprpriate remedy nce nuisance IS determined - Remedy: ld rule is aut injunctin nce nuisance is shwn use is unreasnable & substantially affects π use = autmatic injunctin If harm f injunctin utweighs π s harm, then permanent damages fr past and future harm seems fairer slutin - Curt didn t permanently enjin because ecnmically unfair t (Balance the equities) - Permanent damages: can still perate BUT has t pay damages t π fr FUTURE damage that π will suffer frm; Curt stressed that is unlikely t slve the glbal prblem f pllutin n their wn, therefre an injunctin wuld be unfair. Ges AGAINST the ld cmmn law rule here 8

9 Spur Industries v. Del E. Webb (The π wn, but had t pay the t relcate (very rare type f case)) - Cattle feedlt emits drs & insects affecting residential land values & creating health risks - Case-specific circumstance are key: Lcality & surrundings are f the 1 st imprtance Use that began lawfully and became a nuisance by residential develpment (Nte feedlt cmplies with zning & envirnmental rules) Cming t the Nuisance Dctrine (Spur= huses built clser & clser) - CL: π wh mves near existing use but is abslutely barred frm suit - Mdern rule: it is a relevant factr - ND: it creates a heavy burden fr π Private Nuisance: affects 1 r detrimental # in the enjyment f private rights Public Nuisance: affects a neighbrhd/ cmmunity in rights enjyed as members f the public - Health, safety, peace, cmfrt, cnvenience Private Standing fr public nuisance: nn-gv π must have special injury t bring public nuisance - Ex: private injury f Del Webb 9