13.3 Easements, Real Covenants, Equitable Servitudes & Land Use
Key Takeaways
- Easements appurtenant benefit dominant land and run automatically with the land, created by express grant, implication from prior use, necessity (landlocked severance), or prescription.
- Easements terminate under the END CRAMP framework: Estoppel, Necessity ends, Destruction, Condemnation, Release, Abandonment (requiring affirmative physical acts of intent; mere non-use is never sufficient), Merger, or Prescription.
- Real covenants are enforced at law for damages requiring strict privity (WITHVN for burden, WITV for benefit), whereas equitable servitudes are enforced in equity for injunctions under TWIN (Touch and concern, Writing/common scheme, Intent, Notice) without privity.
- Under the Implied Reciprocal Negative Servitudes doctrine, a common residential subdivision scheme binds unburdened lots if a general plan existed and the buyer had notice, while zoning variances require practical difficulty (area) or unique unnecessary hardship (use).
13.3 Easements, Real Covenants, Equitable Servitudes & Land Use
Private land use controls and non-possessory property rights comprise a major component of the Real Property Multistate Bar Examination (MBE) and Multistate Essay Examination (MEE). Mastering the distinctions between easements, real covenants (damages at law), and equitable servitudes (injunctive relief in equity)—alongside public zoning regulations—requires strict analytical precision.
1. Easements: Classification and Creation
An easement is a non-possessory property interest that entitles its holder to use or enjoy the land of another (the servient tenement) for a designated purpose.
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| EASEMENT CLASSIFICATION |
| |
| EASEMENT APPURTENANT EASEMENT IN GROSS |
| ----------------------------------- --------------------------------- |
| - Directly benefits a DOMINANT TRACT - Benefits the holder PERSONALLY |
| of land. or COMMERCIALLY. |
| - Involves TWO parcels: Dominant - Involves ONLY ONE parcel |
| (benefited) & Servient (burdened). (Servient estate). |
| - PASSES AUTOMATICALLY with convey- - Personal easements: NOT transfer-|
| ance of the dominant tenement, even able. |
| if unmentioned in the deed. - Commercial easements (railroads, |
| - Burden passes to servient successors utilities): FREELY TRANSFERABLE. |
| with notice. |
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The Four Methods of Creating an Easement
- Express Grant or Express Reservation:
- Created by an express written instrument satisfying the Statute of Frauds, signed by the servient owner, describing the burdened parcel and the scope of use.
- Express Reservation: An owner conveys a parcel to another but reserves an easement over that parcel for the benefit of the grantor's retained land.
- Easement by Implication from Prior Use (Quasi-Easement):
- Requires three elements existing at the moment of parcel severance:
- Unity of Ownership: The dominant and servient parcels were previously under common ownership;
- Continuous and Apparent Prior Use: Prior to division, the common owner used one part of the parcel to benefit another part in a manner that was continuous, existing, and visible upon reasonable inspection; and
- Reasonable Necessity: The continued use is reasonably necessary for the beneficial use and enjoyment of the dominant parcel.
- Requires three elements existing at the moment of parcel severance:
- Easement by Necessity:
- Arises when a common owner severs a unified parcel of land, leaving one resulting tract completely landlocked (deprived of any legal access to a public road or utility).
- Requires strict necessity at the time of severance.
- Termination Rule: An easement by necessity endures only so long as the necessity exists; it terminates automatically when the dominant owner acquires alternative public access.
- Easement by Prescription:
- Acquired through adverse use analogous to adverse possession. The claimant's use must be:
- Open and Notorious: Visible and discoverable upon reasonable inspection;
- Continuous and Uninterrupted: For the statutory limitations period (e.g., 10–20 years);
- Adverse / Hostile: Without the servient owner's permission or consent.
- Note: Unlike adverse possession, prescriptive easements do not require exclusive use (the true owner and others may use the same path).
- Acquired through adverse use analogous to adverse possession. The claimant's use must be:
2. Scope, Overburdening & Termination of Easements
Scope and Overburdening
- Evolutionary Scope: The scope of an easement includes reasonable, foreseeable changes in development and technology of the dominant tenement over time.
- The Overburdening Rule: An easement appurtenant is granted exclusively to benefit the dominant parcel. The holder of an easement appurtenant cannot use the easement to benefit adjacent, non-dominant parcels.
- Remedy: If the dominant owner attempts to extend the easement to non-dominant land, the servient owner is entitled to an injunction restraining the unauthorized use. The improper use does not automatically forfeit or extinguish the original easement.
Easement Termination: The "END CRAMP" Framework
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| EASEMENT TERMINATION: "END CRAMP" |
| |
| E - ESTOPPEL: Servient owner materially changes position in reasonable |
| reliance on dominant owner's oral assurance of abandonment. |
| |
| N - NECESSITY ENDS: An easement created by necessity terminates |
| AUTOMATICALLY when the necessity ceases to exist. |
| |
| D - DESTRUCTION: Involuntary physical destruction of the servient building|
| or structure (not caused by servient owner's willful act). |
| |
| C - CONDEMNATION: Government eminent domain condemnation of servient land.|
| |
| R - RELEASE: A written, formal release executed by the dominant owner |
| satisfying the Statute of Frauds. |
| |
| A - ABANDONMENT: Physical, affirmative acts demonstrating a CLEAR INTENT |
| never to use the easement again (e.g., building a permanent wall). |
| *CRITICAL MBE RULE: Mere non-use or oral words ALONE NEVER abandon!* |
| |
| M - MERGER: Complete unity of FEE SIMPLE ownership of both dominant and |
| servient estates in the SAME person. (Does not revive on re-sale). |
| |
| P - PRESCRIPTION: Servient owner blocks/interferes with easement openly, |
| notoriously, continuously, and hostilely for the statutory period. |
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3. Licenses vs. Profits à Prendre
- License: A revocable, personal privilege to enter another's land for a specific, limited purpose (e.g., movie theater tickets, sporting event passes, or an oral grant of an easement that violates the Statute of Frauds).
- Revocability: Licenses are freely revocable at the will of the licensor.
- Irrevocable License (Estoppel): If the licensee invests substantial money or labor in reasonable reliance on the license, the license becomes irrevocable by estoppel for as long as justice requires.
- Profit à Prendre: A non-possessory property right to enter another's land and sever or extract natural resources (timber, minerals, oil, gravel, game, fish). Governed by the same creation and termination rules as easements.
4. Real Covenants: Running with the Land at Law
A Real Covenant is a written promise to do something on land (affirmative covenant) or refrain from doing something on land (restrictive covenant). A real covenant is enforced at law by an action for monetary damages.
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| REAL COVENANT RUNNING REQUIREMENTS |
| |
| RUNNING OF THE BURDEN (WITHVN / PUNIT) RUNNING OF THE BENEFIT (WITV) |
| (Harder to establish) (Easier to establish) |
| -------------------------------------- ------------------------------ |
| 1. WRITING (Statute of Frauds) 1. WRITING (Statute of Frauds) |
| 2. INTENT (Original parties intended 2. INTENT (Original parties |
| burden to bind successors) intended benefit to run) |
| 3. TOUCH AND CONCERN (Affects legal 3. TOUCH AND CONCERN (Enhances |
| relations / use / value of land) use / value of dominant land) |
| 4. HORIZONTAL PRIVITY (Grantor-grantee 4. RELAXED VERTICAL PRIVITY |
| or shared interest at creation) (Successor takes ANY interest |
| 5. STRICT VERTICAL PRIVITY (Successor carved out of original estate)|
| takes ENTIRE estate of predecessor) |
| 6. NOTICE (Actual, inquiry, or record *NO Horizontal Privity Needed* |
| notice to subsequent purchaser) *NO Notice Requirement* |
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Privity Breakdown
- Horizontal Privity: Requires a shared legal relationship in the land between the original covenanting parties at the exact time the covenant was created (e.g., grantor-grantee via deed, mortgagor-mortgagee, or landlord-tenant). Agreements between neighboring landowners who do not transfer land between themselves lack horizontal privity.
- Strict Vertical Privity: Requires that the successor hold the entire duration and estate of the original party (e.g., fee simple absolute transferred to fee simple absolute). If a fee owner leases to a tenant, strict vertical privity is broken.
- Relaxed Vertical Privity: Requires only that the successor hold some possessory estate derived from the original benefited party (e.g., a life tenant or sublessee can enforce the benefit).
5. Equitable Servitudes: Injunctions in Equity
An Equitable Servitude is a covenant concerning land that equity will enforce against successors via injunctive relief or specific performance.
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| EQUITABLE SERVITUDES (TWIN) |
| |
| REQUIREMENTS FOR BURDEN TO RUN IN EQUITY: |
| 1. TOUCH AND CONCERN: The promise relates to the use/enjoyment of land. |
| 2. WRITING (or Implied Common Scheme): Satisfies SOF or Common Plan. |
| 3. INTENT: Original parties intended the covenant to bind successors. |
| 4. NOTICE: Successor had Actual, Inquiry, or Record notice at purchase. |
| |
| *CRITICAL DISTINCTION: NO HORIZONTAL OR VERTICAL PRIVITY REQUIRED!* |
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Implied Reciprocal Negative Servitudes (Common Development Scheme)
When a developer subdivides a tract of land into multiple residential lots and sells some lots with restrictive covenants (e.g., "single-family residential use only") while omitting the restriction from deeds to other lots, equity will imply a reciprocal negative servitude binding all lots if:
- Common Development Scheme: At the time sales began, the developer had a general, uniform scheme for development (proven by recorded subdivision plat, uniform advertisements, or widespread inclusion of covenants); and
- Notice: The defendant purchaser took with notice of the restriction (actual notice, inquiry notice from the uniform residential character of the neighborhood, or record notice from recorded subdivision documents).
Defenses to Enforcement of Servitudes
- Changed Conditions Doctrine: The character of the entire surrounding neighborhood has changed so radically and permanently that the fundamental purpose of the restriction is completely destroyed. (Changes outside the subdivision or along the perimeter do not suffice if the interior remains viable).
- Equitable Defenses: Unclean hands (plaintiff committed identical violation), laches (unreasonable delay in bringing suit causing prejudice), and acquiescence (tolerating prior violations by others).
6. Servitudes Decision Tree
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| SERVITUDES ANALYTICAL DECISION TREE |
| |
| What remedy does the plaintiff seek? |
| | |
| +---------------------------------+ |
| v v |
| MONETARY DAMAGES INJUNCTIVE RELIEF / SPECIFIC PERF. |
| (Real Covenant at Law) (Equitable Servitude in Equity) |
| | | |
| Is plaintiff enforcing the Is plaintiff enforcing the |
| BURDEN or BENEFIT? BURDEN? |
| | | | |
| v v v |
| BURDEN BENEFIT Apply TWIN: |
| Apply WITHVN: Apply WITV: - Touch & Concern |
| - Writing - Writing - Writing (or Common Scheme) |
| - Intent - Intent - Intent |
| - Touch/Conc. - Touch/Conc. - Notice |
| - Horiz. Priv. - Relaxed Vert. (NO PRIVITY REQUIRED) |
| - Strict Vert. Privity |
| - Notice |
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7. Public Land Use & Zoning Regulations
Municipalities regulate private land use pursuant to state police power authorized by state zoning enabling acts.
1. Nonconforming Uses
A pre-existing, lawful use of land that does not conform to a newly enacted zoning ordinance is a protected nonconforming use.
- The municipality cannot eliminate the use immediately without just compensation.
- The municipality may phase out the nonconforming use through a reasonable amortization period (giving the owner time to recoup their investment).
- A nonconforming use cannot be substantially expanded, structurally altered, or revived after voluntary abandonment.
2. Zoning Variances
A variance is administrative permission granted by the zoning board of adjustment allowing an owner to depart from literal zoning requirements:
- Area Variance: Relaxes dimensional, setback, or height restrictions. Requires a showing of practical difficulty in complying with the literal code.
- Use Variance: Permits a property use that is otherwise prohibited in the zoning district (e.g., commercial shop in a residential zone). Requires a rigorous showing of unnecessary hardship unique to the property (the owner cannot obtain a reasonable return under any permitted use, the hardship is not self-created, and the variance will not alter the essential character of the neighborhood).
A farmer owned two adjoining parcels: Eastacre and Westacre. The farmer constructed a paved gravel driveway across Eastacre that was continuously used to haul harvested grain from the barn on Westacre to the public highway. The farmer subsequently conveyed Westacre to a buyer by deed, making no mention of any driveway rights, while retaining Eastacre. The buyer continued using the driveway across Eastacre. Two years later, the farmer erected a locked gate across Eastacre, blocking the buyer's access to the highway. The buyer has alternative access to a different public road, but using it requires constructing a bridge across a creek at substantial financial expense. What right, if any, does the buyer hold over Eastacre?
A developer established a 50-lot residential subdivision. The recorded plat and deeds to the first 45 lots sold contained an express restriction: 'All lots shall be used solely for single-family residential dwellings, and no commercial structures shall be erected.' The developer subsequently sold the remaining 5 lots to a commercial builder by deeds containing no restrictions. The commercial builder began constructing a convenience store on one of the unrestricted lots. An owner of one of the original 45 residential lots filed an action to enjoin construction. The commercial builder argued that the absence of a written covenant in its deed precluded enforcement. How should the court rule?
A commercial property owner granted a written easement appurtenant to an adjoining retail shopping center allowing customer vehicular parking on a paved portion of the owner's parcel. Ten years later, the shopping center owner purchased an adjacent vacant parcel, constructed an office building on it, and invited office tenants and visitors to park on the servient owner's parcel pursuant to the easement. The servient owner sued to enjoin all use of the easement by the shopping center owner. How should the court rule regarding the scope of the easement and the requested remedy?
Two adjacent residential landowners, Owner A and Owner B, entered into a written agreement providing that neither owner would construct any fence or structure exceeding six feet in height along their shared boundary line. The agreement was properly signed, acknowledged, and recorded in the county land records. Owner A subsequently conveyed his parcel to Buyer A. Buyer A constructed an eight-foot solid masonry privacy wall along the boundary line. Owner B sued Buyer A for monetary damages at law for breach of a real covenant. Buyer A defended on the ground that there was no horizontal privity between Owner A and Owner B. Will Owner B prevail in an action for damages at law?