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Unformatted text preview: SERVITUDES: PRIVATE LAND-USE PLANNING I INTRODUCTION : A) Defined: Servitudes are promises made about the use of your land. 1) Generally made to a neighbor(s). B) Types of Servitudes 1) Easements (a) Positive (b) Negative 2) Real Covenants (law) 3) Equitable Servitudes (equity) II EASEMENTS A) Introduction: 1) Definition : (a) A grant of an interest in land that allows someone to use anothers land. (promises) (Altman says basically = just crossing land) 2) Easement appurtenant or in gross: All easements are one or the other: (a) Appurtenant : easement to someone as a landowner (stays w/ land; person moves doesnt have any more but new landowner does). i When they stop owning the land, the easement goes to new owner. ii May be subject to time limits iii Favored by courts if doesnt specify between appurtenant or in gross. (b) In Gross: Easement to an individual (doesnt stay with land) i May be subject to time limits ii Transferable or not transferable (can be either) A. If agreement is silent, court looks at use: 1. Commercial use transferable 2. Non-commercial use not transferable. 3) Positive or Negative Easements (a) Positive: right to go on land (b) Negative: promise not to use your own land in a certain way B) Positive Easements 1) Definition: Right to go onto the land of another and do some act on it. (crossing) (a) Irrevocable (revocable/non-transferable = license ). (b) Can be subject to time limitations/defeasible conditions/restrictions i I give to you for 10 yrs/your lifetime/as long as you dont make noise at night A. Remedy to breach of defeasible condition: lose easement B. Remedy to breach of restriction: sue for injunction or damages (c) Subject to statute of frauds (must be in writing) 2) Creation: Explicit promise (give/sell/reserve) (a) Draft by saying I give you personally or in gross or I give you an easement appurtenant (b) Usually b/w neighbors but not always i Power company (c) In course of sale i May sell lot w/ easement across remaining land ii May sell but reserve easement for self A. Willard v. First Church of Christ, Scientist , p785 1. Facts: M owns lots 19 and 20, allowed Church to use 20 for parking. M sells 19 & later 20 w/ reserved easement in deed to P, who then sells both to , but w/o easement in deed for 20. 2. Old rule: can reserve for yourself, but not a 3 rd party. But, could easily solve problem: 1) sell and reserve easement for self and then transfer or 2) with a 1 double sale. Sell property to church, and they can sell to P while reserving to self. Because of the workaround, court held could let reserve for 3 rd party. Note: title search would have shown restriction. C) Other means of Creating Positive Easements: Implication, Necessity and Prescription 1) Doctrine of Implication from Prior Use : When at time of sale of real estate, parcel of land is subject to an apparent, continuous easement that is reasonably necessary for that land, the law presumes you are going to continue it. presumes you are going to continue it....
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This note was uploaded on 04/17/2008 for the course LAW ? taught by Professor Harmon during the Fall '08 term at Touro NY.
- Fall '08