Licenses and Easements

Introduction

Licensea form of permissive entry in which a temporary invitation is extended to allow a nonowner to come onto a property. The owner waives their right to exclude the non-owners they
have invited in and simultaneously exercises their privilege to admit others to the property.
o Consent is a defense to trespass: A licensee who enters property held by another with
the owners permission does not commit a trespass unless she refuses to leave after
permission is revoked.
o Revocable at will: licenses as permissible entries to land are generally revocable by the
owner. It may be granted and it may be revoked.
Exceptions:
o Example: Inviting friends over for dinner (license); go to a grocery store (implied
license);
Easementsright of access to the property; rights to do specific acts on land owned by
someone else; a non-possessory right in someone elses property.
o Distinguish license vs. easement
Easements are intended to be permanent, or at least to last a specific period
Easements are not revocable by will of the owner of the land over which the
easement passes.
They do not grant full possession; only the right to perform specific acts.
o Distinguish easement v. lease
A lessee has possession and is generally entitled to do whatever she wants with
the property unless agreement provides to the contrary. The license is
irrevocable unless the contract is breached.
Rights short of possession involve entitlements to perform specific acts;
however, they may be intended to be permanent or irrevocable for a specified
period of time.
Easement may be granted by deed, which can be bought and sold.
Usually an easement is granted to owners of neighboring or nearby
land.
Types of Easements
o Affirmative EasementA right to do something on someone elses land.
o Negative or Restrictive Easementan agreement not to do something on your land.
Covenantscontractual agreements where parties agree to restrict the use of their own land
for the benefit of either their landlord or neighboring owners.
o Affirmative covenanta duty to do something on your own land to benefit other
owners
o Restrictive covenantlimits the uses to which land can be put
Servitudesvarious nonpossessory interests individuals can have belonging to someone else.
The main types of servitudes are easements and covenants.

o
o

Servitudes that run with the landmost servitudes are of this type; rights in
someone elses land are attached to ownership of another parcel; the servitude is
appurtenant (attached to) to ownership of a dominant estate whose owner benefits
from use of the servitude on the servient estate (land burdened by the servitude).
Purchaserights encompassed by the servitude will continue to existence if the
parcels burdened or benefited by the easement are sold.
law of real covenantscontracting to limit or regulate land use
equitable servitudesthe equity courts response to technical and substantive limits
to the ability of owners to create and enforce real covenants.

Licenses

Informal creationusually licenses are created informally.

o Some are created by oral statement.
i.e. Inviting friends for dinner
o Others are implied.
i.e. going to the store
Formal creationcreated formally by written grant or statement
Revocablelicenses are generally revocable.
o Commonwealth v. Lapon (Mass. App. Ct. 1990)customer insisted he was entitled to a
free bottle of detergent; he refused to leave; store manager called th police.
The court held that the store was entitled to revoke its implied license to enter
the premises.
o Exceptional cases:
Easement by estoppelif the licensee invests substantially in reasonable
reliance on the license, the courts may grant the licensee an easement by
estoppel.
Public accommodationa public accommodation may have a common law or
statutory duty no to revoke a license if its reasons are discriminatory
License interpreted as lease or covenant
Distinguish:
o License vs. Easement
Wilson v. Owen (Mo. 1953)developer granted homeowners privilege to use
two lakes for swimming, boating, and fishing purposes. Deeds contained
restrictive covenants limiting use of land and gave homeowners association
power to alter covenants. Majority of owners voted to revoke privilege to use
lake for recreational purposes. Some owners sued.
HOAprivilege mere license revocable by the association; covenant
Court held that the association could amend restrictions on land use,
but it could not revoke privileges conferred by the deeds. Privilege
to use lakes was not merely a revocable license but a permanent
easement. surrounding circumstances might be considered: sales

brochures and adverts represented that owners would have exclusive

rights to use the lakes; buyers legitimate expectation of those rights to
be permanent easements.
Counterarguments: easements are normally created by language that
clearly expresses the fact that an irrevocable right is being created.
Unless permanent easement was being created, HOA should be
presumed to have the power to revoke the privilege.
License vs. Lease
These cases are generally decided by asking whether the owner has transferred
(1) exclusive possession of (2) a defined space;
Yeslease likely to be found
Nolicense likely to be found

Easementsa non-possessory right in someone elses land; less than full possession or occupation;
Possessionoccupation of land with the intent to control it

usually easements encompass only specific entitlements, such as right to pass over land, remove
minerals, lumber, etc., right to use land for a specific purpose (recreation)

Implied Easements
Distinguish:

Express vs. implied easements

o Express easementexplicit statement that the grantor conveys an easement to the
grantee and describes the nature and location of the easement. It may be found in a
deed.
o Implied easementwhen the express agreement between parties is silent or
ambiguous on the question of whether the grantor intended to create an easement.
1. Easement by Estoppel
a. When an owner gives someone else permission to use her property in a particular way
and the licensee invests substantially in reasonable reliance on that permission, and
revocation of the license would work an injustice.
i. Reliance must be reasonablethe licensor created the impression that the
license would not be revoked or a reasonable licensee would so construe in that
situation.
ii. Remedy: the doctrine protects grants the licensee a permanent easement or
and easement that will be irrevocable for whatever time is necessary to avoid
injustice.
b. Application
i. Ambiguous deed referencesan owner may grant an easement in writing but
fail to satisfy the requirements of the statute of frauds.

1. Lawrence v. National Fruit Company (Va. Cir. Ct. 1997)deeds referred

to a road called Strothers Lane as a boundary line between parcels of
property; no deed explicitly created an easement
2. Court held reference to private roads implied the road was available for
use by purchasers of contiguous land; express easement had been
created; easement would have also been created by estoppel because
(1) deeds suggested grantees could use the road (2) grantees relied on
that representation ;
a. Reasoning: Grantor intended easement but failed to include
clear language; grantee had reasonably understood the
reference to the road in the deed to constitute a grant of
permission and purchased on reliance of this representation.
ii. Oral Easementsif an owner grants an easement orally, and the grantee
invests in reliance on the ability to use the easement, the courts may find that
an easement was created even though the grantor failed to put it in writing, as
required by the statute of frauds.
1. Also applies when the grantor conveys an easement over land the
grantor does not own but later acquires the property specified in the
easement grant as the servient estate.
iii. Irrevocable licensesan owner intends to grant a license, but the courts
convert it to a permanent easement. If the owner gives permission and the
licensee invests substantially in reasonable reliance on that permission by
expanding money or labor or making improvements on her own land, the
licensor who gave permission may be estopped (prevented) from revoking that
permission for whatever period is deemed necessary to protect the justified
expectations of the licensee.
1. Holbrook v. Taylor (Ky. 1976)
a. Defendant gave neighboring plaintiff permission to use road on
the defendants property to get to plaintiffs land. After
plaintiffs built the house, defendants tried to revoke permission
and close off the land.
i. No express easement created in writing; only
permission
b. Court held that the licensor could not revoke under these
circumstances and turned the revocable license into an
irrevocable license effectively an easement.
c. Policy
i. Arguments for easement by estoppel
1. Intent of grantor: Most cases involve situations in which the grantor has
granted permission orally and has not used the technical word
easement. There is a presumption that grantors intended to grant

easements but simply failed to use the correct language. Effectuating

the intent of the grantor.
2. Protecting interest of licensee: The licensee reasonably relied on the
permission that the licensor knew or should have known that the
licensee was so relying, that the licensees expectations were justified,
and that the licensees justified expectations could only be protected
only by refusing revocation.
3. Reliance and breach of trust: if the licensor does not clarify that the
license is revocable at will and the licensee trusts the licensors good
will, the licensor will not be allowed to breach that trust by revoking
permission after the investment has been made and the reliance has
occurred.
ii. Arguments against easement by estoppel
1. Those who want easements should bargain for them and have them
described clearly in writing. This clarifies property rights, prevents fraud,
and decreases needless litigation.
2. Licensor may have only intended to grant a revocable license; though he
may have misled the licensee by making a representation that the
licensor knew would be understood as granting more than the licensor
intended to grant. Courts may not grant easement if they believe
licensor intended to grant only a revocable license.
3. Limiting the doctrine (and thereby relaxing statute of frauds) increases
uncertainty.
4. Counterarguments: protect justified expectations of the licensee;
applies in relatively clear and predictable circumstances (i.e. when
licensee foreseeably invests substantially in reasonable reliance on the
license; licensor should have known that licensee understood the
permission as an easement)
iii. Hard case (Hearsay)
1. Van Schaack v. Torsoe (N.Y. App. Div. 1990)
a. Plaintiff inherited property from her parents; alleged neighbors
promised her parents they would sell them a strip of land for
use as a driveway; parents built house in reliance on this
permission; no other way to get to the parking spaces behind
the house
b. Court excluded plaintiffs hearsay evidence
c. Reasoning: hearsay rules grounded on the reliability of evidence
involving things said to people who are not able to testify;
inability to cross-examine;
d. Counterargument: an easement by estoppel, once created, is
binding upon sucessors in title if reliance upon the existence of
the easement continues, and excluding the evidence might

allow licensor to evade the result and work injustice on the

party who reasonable relied on the representation
iv. Negative easements by estoppelsome cases involve representations that a
grantors reserved land will not be used for certain purposes.
1. These are usually regulated by the law of covenants rather than
easements and are called equitable servitudes.
2. Implied from Prior Use (quasi easements)
a. Courts will imply an easement from prior use when (1) the two parcels were at one time
in common ownership; (2) one of the parcels had derived a benefit or advantage from
the other parcel prior to the sale, (3) this was both apparent and continuous, and (4)
continuation of the use is reasonably necessary or convenient to enjoyment of the
dominant estate.
b. Kinds of implied easements
i. Rights of way (people, vehicles)
ii. Rights to enter
iii. Rights to obtain (water, oil, minerals, etc.)
iv. Continued access (sewage lines)
v. Access to recreational facilities (lake, beach, gymnasium)
1. Lake/beachcannot said to be necessary, but access may have
induced buyers to buy and they may have relied on that representation
to determine how much to offer for the property.
c. Easements by reservation ad easements by grant
i. Presumption: courts are more likely to imply an easement to a grantee than to
a grantor.
ii. Easement by grant: a grantee who claims an easement over remaining land of
the grantor
1. If it is necessary to the reasonable enjoyment of the dominant estate,
courts are likely to view the omission as a mutual mistake, reform the
deed to comply with presumed intent.
iii. Easement by reservation: when the grantor claims that she intended to reserve
an easement over the land conveyed to the grantee
1. Courts are likely to want a higher level of certainty that the easement is
necessary to the grantors retained land. There is an assumption that
the grantor is parting with all rights in the property being conveyed to
the grantee. If not, it should be explicitly arranged to avoid surprise.
d. Easement implied from map or ambiguous deed language
i. Bubis v. Kassin (NJ Superior Court of Appeals, 1999)It is firmly established
that when land is sold with reference to a map on which lots and streets are
delineated, the purchaser acquires an implied private right of way over the
streets.
1. In most circumstances such implied easements give landowners access
from or to some public highway.

2. If a more expansive right-of-way is necessary for the purchasers full

beneficial enjoyment, courts will recognize whatever implied right is
necessary to carry out the intent of the conveyance.
ii. Developer of a seaside community prepared a map before selling lots which
showed roads from properties to the beach; deeds included general easement
of access to the beach
iii. Court concluded use of streets drawn on the map that provide access to the
beach and ocean were necessary or useful for the beneficial enjoyment of the
lots conveyed and should be recognized as implied easements.
e. Reasonably necessary or highly convenient
i. Landlocked parcela right of way will be recognized if there is no other way for
the grantee to get to a public way.
1. Necessity must be absolute.
ii. Non-landlocked parceleasement will be implied from prior use as long as it is
reasonably necessary.
iii. Extreme difficulty by other routeseasements likely to be implied if access to
the land is extremely difficult by other routes.
3. Necessity
a. Landlocked parcelseasements are implied by necessity when an owner sells a
landlocked parcel. No prior use is required, but there must be no other access to public
roads for this to obtain.
b. Default rule or Mandatory rule?
i. An owner agrees to buy land with no easement over the grantors land because
the grantee intends to access public street through a neighbors driveway. That
access is revoked.
ii. Presumed intent: Third Restatement (and some courts)no easements will be
recognized in this situation. Easements are created by necessity to effectuate
the presumed intent of parties. If the parties intended not to create an
easement, then one will not be recognized.
1. Landlocked owner could purchase an easement.
2. Landlocked owner could sell the property.
3. It would reduce social welfare to force a sale.
4. Inefficientwaste of resources to have landlocked parcel that cannot
be used or developed
a. But it is not the case society would be best off with every parcel
developed and used
iii. Public policy (mandatory): some courts hold that easements are recognized by
necessity regardless of the intent of the parties.
1. Lands should not be rendered unfit for occupancy or successful
cultivation.
2. Owners have a right to get to their own land

3. Purchasing an easement may not be possible (transaction costs may

result in blocked deal; neighbors may be disinclined to bargain)
4. Allows owners to get to their property and ensures each parcel is
available to use and transfer
c. Scope of an easement
i. Strollo v. Iannantuoni (Conn. Ct. App. 1999)court recognized easement by
necessity but limited the road to 20 feet in width. Owner wanted more
substantial easement as would be needed for a road adequate to a subdivision.
ii. Court: it was not reasonably essential to the plaintiffs use of their property to
impose an easement of necessity that is fifty feet wide ... to accommodate a
plaintiffs desire to profit from a potential subdivision. Moreover, the creation of
such a right-of-way would work serious inequity on the defendants.
iii. Other (outside) arguments: easement by necessity should be recognized not
just to provide access to the land, but to provide access to every part of the
land it was foreseeable that an owner might subdivide and developed the
property; owner of landlocked property should be entitled to accessway
appropriate to such development
iv. Statutory Remediessome states allow owners of landlocked parcels the
power to obtain easement over neighboring land for access to a public road by
application to a public official with compensation paid to the landowner whose
property is burdened by the easement,
1. Some courts find these statutes are unconstitutional: property may be
taken by eminent domain only for a public purpose and transfer of
property from one owner to another arguably does not constitute a
public purpose when its only goal is to protect the interests of an
owner, who should have bargained to avoid landlocked property.
2. SCOTUS: public purposes are often served by transferring property from
one private owner to another; preventing scarce resource as land from
being rendered unusable or unalienable would constitute a legitimate
public policy
Prescriptive Easements
1. Prescriptionif one uses someone elses property in a manner that is visible, continuous, and
non-permissive for a period established by the SOL, one can acquire prescriptive right to
continue that use. Prescriptive easements run with the land (are binding on subsequent owners
of the servient estate)
2. Lost grant
a. English approach: presumed use that lasted for a long time had a lawful origin and that
it was based on a lost grant
i. American courts: originally followed this

3.

4.

5.

6.

b. Modern view: bases prescriptive easement on the idea that easements are interest in
property and that such claims are lost if not brought within a time period for suing to
protect property rights
Elements
a. All states
i. Use of property belonging to another
ii. Use be open and notorious or visible
iii. continuous and/or uninterrupted
iv. Last for the statutory period
b. Some states
i. Owner of the land acquiesce to the use
ii. Exclusive
iii. Under claim or right or ownership
c. Burden of proof: generally clear and convincing evidence, though some require only
preponderance of evidence
Usewhen someone uses someone elses property without permission, the question arises
whether the claimant has (1) exercised sufficient control to obtain title by adverse possession or
(2) has only engaged in specific acts that would result in a grant of an easement by prescription.
a. Enclosing land by fences or building structures on it is sufficient to demonstrate intent
to possess the property.
b. Use for passage; laying of utility lines; does not usually constitute possession and will
normally results in grant of prescriptive easement rather than title.
Hard case (driveway)
a. A driveway that encroaches on neighboring land,
i. If the owner uses the property for driveway purposes for a sufficiently long
time, she may be held to have acquired prescriptive easement to continue to
use it for that purpose,
ii. If she can demonstrate she treated the property as her own in a more general
sense, she may be granted title by adverse possession.
1. Usually requires substantial acts;
a. Example: Palazzolo v. Malba Estates (App. Div. 1986)
defendant built retaining wall on property one foot from border
and failed to stop plaintiff neighbor from paving the strip
between the wall and the rest of plaintiffs driveway.
2. Turns on whether the record title owner has been effectively
excluded from the property. Assertion of control vs. use of
anothers land.
Continuousthe use must continue over the course of the statutory period without significant
interruption.
a. Need not be constant.
b. Seasonal use is okay.
c. Occasional sporadic uses not likely to satisfy the requirement.

7.

8.

9.
10.

11.
12.

d. Use by other parties does not constitute interruption in use.

Adverse
a. Presumption: use is presumptively non-permissive or under claim of right
i. Majority view: most courts presume that use of anothers property is nonpermissive. Some say that such use is under a claim of right (the easement
claimant does not ask or feels entitled not to have to ask for permission from
the landowner).
1. Landowner has burden to show the use was permissive to avoid being
subject to prescriptive easement or adverse possession.
ii. Minority view: a fair minority of courts presume use is permissive rather than
adverse.
1. Reasoning: owners often do allow neighbors to cross over land as a
neighborly gesture
Particular presumptions
a. Wild, unimproved landsome courts presume use is permissive if the land is vacant,
wild, unimproved, unenclosed, or remote.
b. Use of road built by an ownersome courts presume that use of a road constructed by
an owner is presumptively permissive.
i. If road was constructed by an easement claimant, this presumption would not
obtain. (see McDonald v. Harris)
Family membersuse is permissive if the parties are family members or otherwise have a
relationship that suggests that it is reasonable to conclude that the use is not adverse
Hard case
a. Community Feed Store, Inc. v. Northeastern Culvert Corp. (Vt. 1989)should the law
presume that use of anothers property is permissive or non-permissive?
b. Arguments for non-permissive
i. Trespass unless consent is given
ii. Wrong to punish owner for being neighborly by forcing owner to accept
permenant intrusion
1. Owners may not be aware of the fact that one who doesnt object
impliedly consents
c. Arguments for permissive
i. Landowner who does not object to encroachment impliedly consents to it
ii. Long-standing use creates expectations that access will continue
iii. Owner could easily grant permission formally or cut off access explicitly
Open and notorioususe must be sufficiently visible that a reasonable owner would be on
notice of the use.
Acquiescencemost courts do not require a showing the landowner acquiesced in the adverse
use. The courts that do interpret it in different ways:
a. Owner failed to do anything to protect her rights in the face of adverse use
b. The owner should have known
c. The owner actually knew

13.

14.

15.
16.

17.

d. The owner knew and acquiesced OR the use is so visible that acquiescence must be
presumed.
e. Subjective vs. objective tests for acquiescence
i. Arguments against subjective teststates of mind are notoriously hard to
prove; application unpredictable
ii. Arguments for subjective testan owner who did not know of adverse use did
not care enough to police the land and should be presume use was with implied
permission
iii. Arguments for objective testwhat a reasonable owner should have known is
likely to be more predictable and works to better clarify when an easement has
been created
iv. Generally subjective knowledge is not required
Exclusiveuser must have excluded the record owner.
a. Note: most courts do not include this element in the list required to establish a
prescriptive easement
i. Reasoning: it is ordinarily possible for both the owner and the easement
claimant to use the property.
b. Some courts do in include exclusivity: claimant use must be independent and not
contingent upon the enjoyment of a similar right by others.
i. Does not mean claimant is the only one using the easement. Claimant can
obtain easement even if owner/third party also uses it
ii. Two non-owners can have independent easements
Prescriptive easements acquired by the public
a. Third Restatementpublic may acquire easements in this manner.
i. Public use of roads, beaches
No prescriptive easement claims against the government
No negative prescriptive easements
a. Failure to act on your own land does not violate anyones rights
b. Ancient lights doctrine rejected: US courts have all rejected the English doctrine of
ancient lights where an landowner who has enjoyed unobstructed access to sunlight can
acquire an easement of light
i. Blocks development
ii. Require every landowner to obtain a waiver of the easement of view
Hard cases:
a. Negligence or bad faith
i. Warsaw c. Chicago Metallic Ceilings, Inc. (Cal. 1984)plaintiffs negligently built
large commercial building and left insufficient space to allow trucks to enter.
Trucks encroached on neighboring property.
ii. Court held because they did so without permission for the statutory period,
court granted a prescriptive easement
iii. Arguments against
1. wrong to reward bad faith

iv. Arguments for

1. good faith requirement requires state of mind proof; hard to come by,
unpredictable
2. compensating negligence would require a standard which would involve
whether the claimant acted unreasonably
a. compensation requirements could be enacted by the legislature
3. ordinary application of statute of limitations should bar claim if it is not
brought within the period
b. TreesMost courts will not grant tree owners prescriptive rights to have their tree
branches hand over neighboring property; allowing owners to develop property more
important than long-standing tree invasion
c. Prescriptive right to commit a nuisance
i. Hoffman v. United Iron & Metal Co. (Md. Ct. Spec. App. 1996)court held
automobile shredding facility that had been operating for more than 20 years
acquired prescriptive right to commit a nuisance by excessive noise, explosions,
and air pollutants.
ii. Nuisance was a violation of neighbors property rights and failure to sue within
the applicable statute of limitations meant those rights were lost.
iii. Arguments for
1. Harms community interests
2. Likely to affect many owners rather than just one single servient estate
3. Transaction costs may bar owners from bargaining
Express Easements
1. Formal Requirements to Create
a. Writingexpress easements ordinarily created by agreement of the parties. Various
statute of frauds require them to be in writing to be enforceable.
i. Written in deed
ii. In the course of transferring or selling ownership or possession of land
b. Easements reserved in third partiesmany states hold that an owner may not transfer
a parcel of property to one person while reserving an easement over the buyers
property in a third party.
i. Drafting around the policy
1. Convey the property to the party who is intended to own the easement,
that party then conveys the property to the ultimate grantee, reserving
the easement over the property for herself
2. Convey the easement to the third party; transfer the parcel, subject to
this new easement, to the grantee
a. Some courts use estoppel to prevent the grantee from
interfering in the easement reserved to the third party

ii. Some states changed the traditional rule, allowing reservation of an easement
in a third party
2. Substantive Limitationscourts have traditionally limited the kinds of negative easements that
could be created. Four traditional categories of negative easements: light, air, lateral support,
and the flow of an artificial stream.
a. Reasons for limitation
i. It is hard or impossible to observe their existence
ii. If it was not limited, any use could presumably interfere with a neighbors
rights; taken to extreme, it could prevent any new uses of property which a
neighbor might object.
b. New negative easements
i. Conservation easements limit land development by restricting the use of land
for environmental purposes.
ii. Historic preservation prevents destruction or alteration of buildings that have
historical or architectural importance
iii. Solar easements protect access to sunlight for solar energy panels.
c. Negative easements and restrictive covenants
i. Limits on the creation of new easements (essentially just a land use restriction)
can be evaded by putting the restriction in the form of a covenant rather than
an easement.
1. Distinguish:
a. Negative easementsubject to limitations; generally
understood to be permanent; could be owned in gross
b. Restrictive covenantgoverned by changed conditions/undue
hardship doctrines; may be nullified; traditionally courts
generally refuse to recognize right to enforce a covenant in
gross
2. Third Restatement: would abolish distinction between negative
easements and restrictive covenants treating them as servitudes.
Abolish limits on easements and covenants. Allow servitudes to be
modified if changed conditions have made it impossible as a practical
matter to accomplish the easements purpose. Easements terminable if
modification is not practicable.
3. Running with the land (Appurtenant v. In Gross)
a. Appurtenant easementrun with the land, so that any benefit of the easement will
pass to any future owner of the dominant estate and the burden will be imposed on any
future owner of the servient estate
i. Requirements
1. Intended to run with the land
2. In writing
3. Owner of the servient estate purchased with notice of the easement

a. Note: future buyers are on constructive notice of the writing in

an earlier deed if it is in the chain of title and can be found by
searching deeds in the recording office.
b. Easement in grossattaches a particular right to an individual rather than to the
property itself. The easement in gross is often considered irrevocable for the life of the
individual, but can be revoked if the individual sells the property that grants him or her
that easement.
c. Ambiguous
i. Presumption in favor of appurtenant easementswhen the deed is not clear,
nearly all courts voice a constructional preference for appurtenant easements.
1. Maximize value of the land
2. Limit number of easements
3. Appurtenant easements interfere with alienability less than in gross
ii. Presumption in favor of easement in grossin South Carolina, easement in
gross preferred
1. Appurtenant easements constitute greater encumbrances on the land;
should not be enforced unless the parties clearly intended to so burden
the land.
iii. Refer to intent of parties
1. Suggests appurtenant
a. appurtenant, intended to run with the land
b. heirs or assigns or successors in interest
c. Other factors: utility in obtaining access to dominant estate
2. Commercial utilitypresumption likely to be intended to be in gross.
3. If easement has no value apart from ownership of the dominant estate
or if it is especially valuable to an owner it will be presumed to be
intended to be appurtenant.
4. Personal characterif the character of the easement or circumstances
surrounding its creation suggest that it was intended to be a private
accommodation to benefit a particular person for noncommercial
purposes likely to be found in gross.
iv. Noticeeasements are binding on subsequent owners of the servient estate
only if they have notice of them. There are three kinds of notice:
1. Actual noticethe subsequent owners in fact knows
2. Inquiry noticeif there are visible signs of use by non-owners (the
owner should have known)
3. Constructive noticeif the deed conveying the easement is recorded in
the proper registry of deeds in the proper place, and if the deed is in the
chain of title (the owner should have known)
4. Scope, Location, and Extension of Appurtenant Easements
a. Interpretation issues
i. Scope of allowable uses encompassed by easement

ii. Divisibility of the dominant estate

iii. Whether the easement can be extended to obtain access to land other than
the dominant estate
iv. Whether the easement can be relocated by either the easement owner or the
servient owner
b. Constructional presumption in favor of the granteemany courts resolve ambiguities
in favor of the grantee. An easement owner is entitled to full enjoyment of the
easement and doubts should be resolved in favor of broad use of the easement.
i. Easements reserved by the grantor over land conveyed to the servient owner,
should be resolved in favor of servient owner because burden should be on
grantor to explain clearly what rights are being reserved.
c. Scope determined by grantors intentthe scope of the easement is determined by the
intent of the grantor. This is gleaned from language in the deed and the circumstances
surrounding its creation, behavior of the parties, etc.
d. Kind of useissues of kind concern the types of uses contemplated by the parties when
the easement was created,
i. Narrow interpretationmany court interpret expressly state uses narrowly
ii. Broad interpretation-easement owners have traditionally been entitled to
reasonable use of the easement. When an easement is created, every right
necessary for enjoyment is included by implication.
iii. Hard case (general rights of way)many cases address the question of how to
interpret easements for a right of way granted in general terms.
1. Some cases rest upon interpretation of language in the deed
2. Others rest conclusions on circumstantial evidence of the parties
intent.
iv. Overburdeningwhether the easement owner has exceeded the scope of
rights encompassed by the easement by overburdening it through quantity or
intensity of use that goes beyond what the grantor intended when the
easement was created.
v. Cox v. Glenbrook Co. (Nev. 1962)servient estate, a resort business, granted an
easement of access to a portion of its land it sold to the dominant owner.
Dominant owner sought to subdivide and build 40-60 homes. Servient owner
claimed that would overburden the easement and exceed the scope of rights
given to the easement owner.
1. Court held: owner has right to subdivide land; question is whether use
by 40 to 60 homes would create undue burden; court remanded for
factual findings on this issue
a. In general, cases finding subdivision creates undue burden are
hard to find because courts assume parties contemplated the
dominant estate would likely be subdivided; judges favor land
development

b. Widthcourt held that the dominant estate had no right to

widen the road to make it a two-lane road. Width if not
specified by grant is determined by width at the time the
easement was initially granted,
i. Practically impossible to subdivide the dominant estate
ii. Places burden on dominant owner to compensate the
servient owner for the increase while giving the servient
owner the entitlement to reject the offer
2. Prescriptionwhen an easement owner exceeds the scope of
easement for a sufficiently long period, a right to continue expanded
use may be obtained by prescription.
vi. Extension to other landsometimes the dominant owner purchases or owns
another parcel of land next to the dominant estate. Questions arise as to
whether the easement owner can use the easement to obtain access to
neighboring land (not the dominant estate).
1. Traditional view: appurtenant easements only benefit the dominant
estate and cannot be used to obtain access to other land unless
provided in the terms of the easement.
2. Some courts: an extended easement is permissible if it does not result
in material increase in the burden on the servient estate.
a. Brown v. Voss (Wash. 1986)dominant owner purchased
another parcel, combined two parcels, built one home on the
enlarged parcel
i. Court refused to enjoin (prohibit) the use and limited
damages to one dollar because easement was still being
used by only the dominant estate owner and the
burden on the servient estate had not increased.
vii. Relocation
1. Owner of servient estate wishes to relocate the easement to facilitate
construction on her land
a. Traditionally courts have not allowed the servient owner to do
this without the consent of the easement owner.
b. Recently some courts have begun to allow servient owners to
relocate the easement over the objections of the easement
owner. (adopted by Third Restatement)
i. Third Restatementas long as changes are
reasonable and do not (a) significantly lessen the
utility of the easement, (b) increase the burden on the
owner of the easement in its use and enjoyment, or
frustrate the purpose for which the servitude was
created

ii. If servient owner has relocated the easement without a

court order, the court may refuse to require restoration
to the original location if there has been no diminution
of benefit to the easement owner and the equities are
appropriate.
2. Policy concernsprotects rights of dominant owner while allowing
development on the servient estate; easement owner may not in fact
find the new location to be as beneficial or convenient as the old
a. Two ways of viewing easements:
i. Meddlesome intrusion
ii. Property owned by easement owner
3. Appurtenant easement cannot be converted to an easement in gross
without consent of the owner of the servient estate; with consent, it is
conceptualized as a new easement.
5. Scope and Apportionment of Easements in Gross
a. Scopewhether an owner of an easement in gross can extend the use to other
purposes.
b. Transferability
i. Older caseseasements in gross are not transferable
ii. Modern casesalmost all courts now hold that easements in gross are
transferable when they are commercial in nature; but not transferable when
they serve a personal or noncommercial purposes and appear to have been
intended only to benefit the immediate recipient of the easement. Profits are
transferable. Recreational uses are commonly viewed as personal, not
transferable. Commercial easements in gross transferable by owner.
1. Some jurisdictions hold al easements are transferable.
c. Apportionmentthe power to license others to use the easement
i. Exclusiveapportionable
ii. Non-exclusivenon apportionable
iii. Third Restatement
1. Divisible unless (1) contrary to intent of parties OR (2) division
unreasonable increases the burden on the servient estate.
d. Economic Significance
i. Easement owner that can license it will make money, rather than the various
owners of the servient estates
ii. Clients only need to bargain with the easement owner, rather than all of the
servient estates
e. Arguments for and against allowing apportionment
i. Arguments for
1. Facilitates certain industries (cable television)
2. Apportionment is implicit
ii. Arguments against

1. Easement owner should be able to transfer, but that doesnt mean

they should be able to share rights (servient owner may not have
intended to give up all control)
2. Cant assume servient owner did not reserve right to license another
person to use the easement
Terminating Easementseasements are terminated (1) by agreement in writing (release of the
easement by the holder); (2) by their own terms; (3) by merger (servient and dominant estate comes to
be owned by the same person; (4) by abandonment; or (5) by adverse possession or prescription of the
servient estate or by a third party
1. Abandonmentmere nonuse does not constitute abandonment; the easement owner must
engage in affirmative action that clearly indicates intent to abandon the easement.
2. Changed conditions
a. Traditionally easements were not subject to being modified or terminated by changed
conditions.
b. Some courts would terminate easements because of frustration of purpose
i. Frustration of purposepurpose is impossible to accomplish; easement no
longer serves its intended purpose
c. Third Restatementwould extend changed conditions doctrine to easements;
servitude can be modified if changed conditions have made it impossible as a practical
matter to accomplish the purpose. May be terminated if modification not
practicable.
3. Marketable title acts
a. Some states have enacted Marketable Title Acts that require easements and other
encumbrances be re-recorded periodically (30 to 50 years) to be binding on future
purchasers.
i. Purpose: limit how far back a buyer must look in the chain of title to determine
validity of sellers title and existence of encumbrances on the land
ii. Effect: renders unenforceable interests of insufficient importance to be rerecorded in compliance with statute.

Covenants
Introduction
Real covenantsTraditionally real covenants were said to run with the land, binding the servient estate,
and benefitting the dominant estate if (1) the covenant was in writing, (2) the purchaser of the servient
estate was on notice of the covenant at the time of the purchase, (3) the original covenanting parties
intended both the burden and the benefit to run with the land, (4) the original contracting parties were
in privity of estate with each other and subsequent owners were in privity with the original contracting
parties, and (5) the covenant touched and concerned the land.

Remedy: traditionally the assessment of damages.

Equitable servitudescovenants were enforceable by injunctive relief if (1) the purchase of the servient
estate was on notice of the covenant at the time of acquisition, (2) the original covenanting parties
intended the covenant to run with the land, and (3) the covenant touched and concerned the land.

Omits horizontal and vertical privity requirements and substitutes a notice requirement

Formal Requirements
1. Writingthe statute of frauds requires covenants to be in writing to be enforceable against
subsequent owners. They are usually included in a deed, a lease, or deed of declaration. The
requirement of writing is satisfied if the original covenanting parties put it in writing.
Subsequent deeds do not to include the covenant.
a. recorded restrictions in the chain of title: the grantee is on constructive notice of
properly recorded restrictions in the chain of title and impliedly agrees to be bound by
such restrictions
b. Exceptions:
i. Doctrine of estoppel
1. The doctrine holds a person to a representation made or a position
assumed where otherwise inevitable consequences would result to
another who, having the right to do so under all of the circumstances of
the case, has in good faith relied thereon and been misled to his injury.
2. If the grantor made representations (including oral) to the effect that
restrictions exist, and the buyer relied on the representations, the
courts might enforce restrictions under the doctrine of estoppel.
c. Mapsometimes developers may refer to restrictions in a plat or map, but fail to record
a declaration that includes the restriction and also fail to include any restrictions in the
deeds themselves.
i. Majority view: most courts reluctant to enforce restrictions unless play clearly
indicates the extent and nature of the restriction. If the plat clearly refers to the
covenants, they will be enforceable against owners who take with notice of
them.

d. Oral representations and sales literature

i. Oral representations by developers are often accompanied by sales literature
that indicates a neighborhood will be restricted in particular ways. Such
representations may not be reflected in the deeds or recorded declaration. They
do not suffice as writings under the statute of frauds.
1. Doctrine of estoppel if the buyer rely on the representations (in
deciding to purchase), some courts will enforce the restrictions.
a. This includes oral representations.
b. Affirmative promises by developers likely enforced by damages
than injunctive relief.
2. Arguments for enforcing oral representations
a. common honestya grantor who induces purchasers by use
of a plat to believe a representation, and the purchasers have
acted upon the inducement, is required by common honesty to
do what he represented he would do.
i. Rooted in notions of justice and fair dealings.
3. Arguments for strict enforcement of statute of frauds
a. In some cases, performance is impossible. An representation is
enforceable only if the grantor engaged in intentional fraud.
2. Notice
a. Traditional view: Notice traditionally required for equitable servitude but not real
covenants.
b. Modern view: Notice is a requirement for a real covenant.
i. Restatement (Third)servitudes may be extinguished by operation of recording
statutes if they are not evident and discoverable by reasonable inspection or
inquiry and are not recorded so that a buyer would be on constructive notice.
ii. Case law: notice not a requisite for real covenantsgenerally involve situation
where purchasers have been on constructive notice
c. Actual and constructive notice
i. Notice can be proved by showing that the purchaser was actually aware of the
covenant (actual notice).
ii. A buyer or lessee is on constructive notice is the covenant was recorded in the
registry of deeds as part of the deed or lease creating the covenant or a
declaration containing the restriction was recorded prior to the transfer of the
property affected by the covenant. A reasonable purchaser is expected to
search the title to find out whether the property is burdened by any land use
restrictions, and a buyer is deemed to know what she would have discovered
had she performed a search of her chain of title.
d. Inquiry notice
i. If any condition of the premises indicates that the property is encumbered, the
buyer or lessee is on inquiry notice.

1. Observable conditiongenerally important only in affirmative

easements; unlikely to put buyer on notice of negative or restrictive
covenant
2. Uniform pattern of usesome courts hold buyers or on notice when
property has a uniform pattern of use (i.e. all single-family homes);
Buyer may be obligated to search deeds of surrounding lots to
determine if they are restricted by covenants binging current owners;
a. General plan obligationif enough of surrounding lots are
restricted by covenants, some courts hold that a general plan
has been established that burdens all lots within the borders of
the area covered by the general plan.
b. Constructive notice obligationsome courts find buyer on
notice of general plan not on the basis of uniform land use, but
because they are obligated to research deeds to contiguous or
neighboring parcels to see if a uniform plan of restrictions was
intended to apply to the neighborhood.
ii. Grantor/grantee covenant notice problemscourts are divided on the
question of whether buyers are on constructive notice of covenants that are
recorded in deeds relating to neighboring property. The kinds arise:
1. Grantor covenantspromises from sellers to buyers
2. Grantee covenantspromises from buyers to sellers
3. Intent to Run
a. A deed or lease that includes a restrictive covenant will be deemed to show the
grantors intent for the covenant to run to future possessors IF it expressly recites that
the covenant is made to, or is enforceable by, the heirs or assigns or successors of
the covenantee and/or if the covenant expressly states that it is intended to run with
the land or to bind future owners of the affected property.
b. Ambiguous documents
i. Majority view: If it is the kind of covenant that was intended to run with the
land, most courts will hold the covenant runs with the land.
1. (Presumption) likely to be intended to runif they satisfy the touch
and concern test (meaning they restrict the use of the servient estate
and they are of use to owners of the dominant estates).
ii. Minority view: some courts require clear evidence a covenant is intended to run
with the land. One court refused to presume that a land use restriction that
touches and concerns the land was likely intended to run with the land.
1. Clear evidence applies wither to the text of the conveyance or from
surrounding circumstances.
2. Rationale: covenants are an encumbrance on ownership; may inhibit
alienability; property rights should be construed in favor of free use
unless parties have clearly agreed to the contrary.
c. Intent to run on one side only

i. In some cases, the original covenanting parties may intend the burden to run
with the land but not the benefit, or vice versa. The covenantee can enforce
such a burden while it owns the land but the restriction will no longer apply
once the dominant estate is sold.
d. Three kinds of intent
i. Intent to enter no enforceable legal relationship at all
ii. Intent to create legal relations, but only to create a mere contract relationship
iii. Intent to bind the land
4. Privity of Estate
a. The original covenanting parties each had simultaneous interest in the land at the time
the covenant was created and that the burdens and benefits of the covenant would pass
to successors to those interests.
b. Two kinds of privity were required for a covenant to run with the land:
i. Horizontal privityrelation between the original covenanting parties
ii. Vertical privitythe relation between the original covenanting parties and their
successors in interest.
c. The purpose of servitudes law is to impose restrictions on some real property interests
intended to benefit the owners of other property interests. The idea of privity is that the
law will attach such burdens and benefits to ownership of particular parcels only when
the burden to the servient estate is justified by a compensating benefit to one or more
dominant estates.
d. Origins of privity concept (England)
i. Traditional contract law rights were not assignable to others. Promises were
personal.
ii. Courts developed an exception to this principle of nonassignability.
1. Privity of estatethe benefits of a contract were assignable if they
were conceived as being attached to an ownership interest in land
created by two parties who had simultaneous rights to that land. This
allows the burden and the benefit to run with the land.
2. Landmark case: Spencers case
a. An affirmative covenant was enforceable because (1) it was
intended to be binding on future tenants, (2) the covenant
touched and concerned the parties, (3) there was privity of
estate.
i. Privity of estate in this context was mutual privity. The
landlords and tenants had simultaneous interests in the
same parcel of land because ownership rights were
divided between the tenants present estate (term of
years) and the landlords future interest (reversion).
3. The question arose whether a covenant could be enforced if it were
contained in a deed rather than a lease. The problem here is that the
parties do not own simultaneous interests in the same piece of land. It

is privity (instantaneous) only in the sense that the covenant is created

at the fleeting moment the property interest is transferred from one to
another. English courts rejected this notion of instantaneous privity.
Privity required simultaneous interests in the same parcel (mutual
privity).
a. Thus, in England, covenants law was limited to landlord/tenant
relationships.
4. Development of equitable servitudeslitigants who could not obtain
relief in the law courts could approach the equity courts for relief from
the harsh common law rule.
a. Landmark case: Tulk v. Moxhaydropped the privity
requirement and provided that covenant that touched and
concerned the land were intended to be binding on future
owners, and they would be enforceable against buyers who
took possession with notice of those covenants.
b. Distinguish: real covenants vs. equitable servitudes
i. Real covenantsenforced by damages in law courts
ii. Equitable servitudesenforced by injunctions in the
equity courts
iii. Developments in the United States
1. In the US, privity has been extended from traditional landlord-tenant
relationships to allow enforcement of covenants contained in deeds of
sale.
a. Most courts expanded the privity concept by adopting the
instantaneous privity doctrine.
i. Instantaneous privityprivity exists if a covenant was
created in the context of the sale of property
transferring a property interest from a grantor to a
grantee.
ii. In theoryat the moment the deed passes from seller
to buyer, the parties have a fleeting, instantaneous,
simultaneous interest in the property and the covenant
was thought to attach itself to the property interest
conveyed from the seller to buyer.
2. US also accepted equitable servitudes doctrine by which enforcement of
covenants by injunctive relief was allowed without regard to technical
privity requirements if the owner of the servient estate purchased with
notice of the covenant.
e. Strict Horizontal privityhorizontal privity involves privity between the original
covenanting parties. It can be satisfied by either (1) mutual privity or (2) instantaneous
privity.

f.

i. Mutual privityis established (1) if the covenant is contained in a lease

transferring possession of land from landlord to tenant, (2) if the covenant is
contained in a deed that divides property ownership between a present estate
and a future interest, or (3) if the covenant is contained in a deed conveying
ownership of land and one or both parties owns an easement burdening the
property of the other.
ii. Instantaneous privityestablished by placing the covenant in a deed of sale
that creates the restriction and impliedly or expressly states that the covenant is
intended to benefit remaining land of the grantor.
iii. Problems with strict horizontal privitythe strict horizontal privity
requirements traditionally excluded three types of relationships that are today
thought to be legitimate sources of covenants that should run with the land.
1. Agreements among neighborsExcluded agreements among neighbors
that are not part of a simultaneous conveyance of another property
right.
2. Later agreementsA covenant between a grantor and grantee not
entered at the same moment the affected property interest was
transferred.
3. Obligations to earlier buyersit was not clear how earlier grantees
could sue later grantees for breach of grantee covenants contained in
the later deeds.
a. Theoretically: at the moment the later grantees buy their land,
there is no longer any relationship between the grantor and the
earlier buyers.
b. This problem was solved by implying a promise by such
grantees to benefit earlier as well as later buyers and enforcing
that promise despite the absence of contract between the later
buyer and the earlier buyer and despite the lack of privity of
estate between the later buyer and the earlier one.
4. Not required for enforcement as an equitable servitude.
5. Third Restatementsuggests strict horizontal privity is no longer part
of the law; allows enforcement of covenants whose benefit is held in
gross if the beneficiary has a legitimate interest in enforcing the
covenant.
Strict vertical privityrefers to the relationship between the original covenanting
parties and their successors in interest. In general, vertical privity exists when an owner
succeeds to the interest held by an original covenanting party.
i. The rules developed to require that the succeeding owner to the servient
estate must receive the entire estate of the prior owner; this does not mean the
owner had to own the entire area of land but rather the successor should own
an estate that lasted as long as that of the prior owner.

ii.

iii.

iv.

v.

1. Estates of lesser durationthose that held estates of lesser duration

were not thought to be in strict vertical privity of estate.
a. Landlord tenant
i. Landlord leases propertytenant is not bound by
covenants that would have bound her landlord
ii. Subletting vs. as assignmentwhen a tenant assigns the
rest of her leasehold, privity exists. It does not exist
when the original tenant sublets to another tenant and
retains the right to re-enter the property before the end
of the leasehold.
Relaxed vertical privitysome courts traditionally have required vertical privity
only for the burden to run with the land and have allowed a covenant to be
enforced by a succeeding owner of the dominant estate despite lack of strict
vertical privity on the benefit side.
Effect of strict vertical privityvertical privity is not a formality because in
certain relationships it is impossible to establish (i.e. landlord-tenant). By
definition, a grantor in vertical privity cannot have retained a future interest.
1. Consequences:
a. Dominant owner cannot obtain damages against a tenant who
leased the servient estate and violated a covenant burdening
the land.
b. A landlord may not be able to sue a subtenant for unpaid rent.
Third Restatement on negative covenantsto avoid these results in affirmative
covenants, the Third Restatement abolishes both the horizontal privity and
strict vertical privity requirement; those who succeed to interests in the servient
estate are burdened by restrictive covenants of which they were on notice
when they purchased the property. In addition, owners who do not derive their
title from one of the covenanting parties can enforce the covenant if they are
intended beneficiaries of it. This extends to adverse possessors.
Third Restatement on affirmative covenants
1. Affirmative covenantare those that require the covenantor to
perform certain actions.
2. Restatement provides that:
a. burdens of affirmative covenants are enforceable only if they
can more reasonably be performed by a person in possession
than by the holder of a reversion in the burdened property.
b. Benefits or affirmative covenants can be enforced by the lessee
if they are covenants to repair the property or if the benefits
can be enjoyed by the lessee without diminishing their value to
the lessor and without materially increasing the burden of their
performance on the person obligated to perform the covenant.

Substantive Requirements
1. Touch and Concerna covenant meets this test if it has something to do with the use of the
land and/or is connected with enjoyment of the land. (i.e. restrictions on land use)
a. May also require that the covenant affect the market value of the land by increasing the
value of the benefitted land.
b. Some courts hold that land use restriction touches and concerns the land if it affects the
parties interest as landowners such that benefits and burdens could not exist
independently of the parties ownership interests in real property.
c. Reasonableness: the dominant consideration seems to be the conclusion that the
obligation and/or benefit is the kind that should run with the land, binding and
benefiting future owners. Reasonableness, not esoteric concepts of property law,
should be the guiding inquiry into the validity of covenants at law.
i. Anticompetitive covenants and covenants that involved payments of money
were not enforced by courts. Under touch and concern doctrine, such covenants
do not relate to the land, but merely represented economic benefits.
ii. Covenants in gross also not enforced; did not touch or concern dominant
estate; restriction was not balanced by any compensating benefit to other land.
d. Third Restatementwould abolish the touch and concern requirement and provide
instead that covenants will run with the land unless they are unconscionable, without
rational justification, or otherwise violate public policy.
i. appurtenant benefits and burdens should run with the land when they are tied
to ownership or occupancy of land in the sense that they obligate the owner or
occupier of a particular unit or parcel in that persons capacity as owner or
occupier of land.
1. Appurtenant v. in grossa servitude is appurtenant rather than in
gross or personal only if it serves a purpose that would be more useful
to a successor to a property interest than it would be to the original
beneficiary.
e. Covenants to pay money
i. Homeowners association feesgenerally enforceable; strong relation to land
use: (1) benefits landowners, (2) increased value of the property
2. Enforcement in Gross
a. Intent to allow original covenantee to enforce in gross after transfercovenants that
touch and concern the use of land for the benefit of the owner of neighboring land are
presumed enforceable only by the current owner of the benefitted parcel.
i. Some courts may allow enforcement of the original covenantee if the parties to
the original covenant intended to allow enforcement after the transfer of the
dominant estate, but they are extremely reluctant to find such intent absent
explicit language to that effect.
b. Covenants whose benefits are initially held in gross

i. Traditionally the benefit of the covenant could not be held in gross even if the
parties intended to create such an arrangement.
1. A landowner may make an enforceable contract to restrict her own land
use, but the obligation will not pass to future possessors if the promise
does not benefit the owner of another parcel.
2. Cons: restricts free use and marketability
3. Pros: can be justified by sufficient compensating benefit
ii. Exceptions: homeowner associations, charities, governments.
c. Restatement (Third)would allow enforcement in gross only if the beneficiary of the
covenant has a legitimate interest in enforcing the covenant.
Implied Reciprocal Negative Servitudes

The law of equitable servitudes provided the legal basis for reciprocal enforcement of negative
servitudes among homeowners in subdivisions and later on, in condominium arrangements.
o It allowed (1) reciprocal enforcement when the deeds in question formally restricted
use of the land by the technical requirements of privity were not met and (2) it imposed
obligations on land purchasers to research titles both to parcels they were buying and
also neighboring parcels that had been owned and conveyed by the seller of the land.
If the developers in a subdivision placed uniform restrictions, courts might
conclude the developer had intended to create a general plan of restrictions.
There are enforceable.
Early v. later buyers
o Technical problems in mutual enforcement of covenants arise from early buyers against
later buyers.
Developer subdivides lots and sells them in succession. First buyer agrees to
use for residential purposes.
Later buyers can enforce the covenants in the deeds to earlier sold property as
successor owners of the dominant estate.
Earlier buyers cannot enforce the covenants contained in the deeds of later
buyers under real covenants law because at the time the later buyer agrees to
restrict, no privity of estate exists between the earlier buyer and the later buyer.
Grantor Covenant as solutionwhen the developer includes both a grantor covenant and a
grantee covenant, the privity problem goes away.
o Theoretically:
The later buyer can enforce the grantee covenant made by the earlier buyer
because the earlier buyers promise to the grantor was intended to benefit the
grantors remaining land.
The earlier buyer can enforce the grantor covenant against the grantors
(developers) successor, the later buyer if the deed was recorded and the later
buyer is on constructive notice of the promise between the grantor (developer)
and the earlier buyer.

Third party beneficiary doctrine allows contractual promises to be enforced by someone for
whose benefit a promise was made even though the promise was not made to that person.
o i.e. earlier buyer may sue as the third party beneficiary of a promise between the
grantor (developer) and the later buyer.
o In such a case, the promise is intended to benefit not only the developer and the
developers remaining land, but also lots previously sold in the same subdivision.
Rationale: courts refer to general plan or common scheme. If all the lots in
an area previously owned by a single grantor are similarly restricted, this
provides evidence that the developer intended the restrictions to be mutually
benefitting and reciprocally enforceable; the owner is restricted and entitle to
enforce the same restrictions against her neighbors.
Factors showing existence of general plan
Presence of restrictions in all or most deeds to property
Recorded map/plat
Presence of restrictions in the last deed
Observance by owners of similar development of their land and
conformity to the written restrictions
Language stating covenants are intended to run with the land
Recording of a declaration that covenants are intended to be mutually
enforceable
Supplements
o Oral statements
o Sales literature
Third Restatementabolishes horizontal privity requirement and provides that restrictions in
deeds intended to benefit other property will be mutually enforceable if the purchasers have
notice of them when they purchase.

Remedies

Damages and injunctions are both available today

o Traditional
Real covenants enforced by damages
Equitable servitudes enforced by injunctions
o Third Restatement
Any covenant that is enforceable by damages is enforceable by injunction
Denial of injunction
o Lack of notice defense
o Injunctive relief is overly burdensome
o The person seeking the injunction has acted unfairly
Damages denied, injunction awarded
o States the enforce the privity requirement:

when privity is lacking, restriction may be enforceable by injunction as

equitable servitudes, but will not be enforceable by damages
o owner burdened by restriction, but not in chain of title
o Rationale: protects reliance interests of the covenantee through injunction while
limiting servient owners from unlimited financial exposure to owners outside the chain
of title
Injunction v. damages
o Contract law approach: damages are usual, injunctions are awarded only when
damages are inadequate
o Property law: damages often thought inadequate because value attached to land and
desire for free use
o Argument for damages
Damages are the usual remedy
Efficiency
Allows promisor to breach compromise
Protect reliance interests of promisee
If promisor pays, promisee has benefit of the bargain and protection
from financial harm; promisor has more valuable use of the land
Maximize joint value of landlord/tenants property rights
Protects liberty interestsfreedom to change their mind
o Argument for injunction
Fairness
Doctrine of efficient breach transfers property rights from promisee
to the promisor against the will of the promisee
o Forced sale, at price determined by court; may be less than the
owners asking price
Efficiency
If the court granted injunctive relief, servient owner would have to offer
dominant owner enough to meet the dominant owners asking price
this is done not by market value, but by bargaining of parties.
efficiency measured by whether the redistribution will benefit the
new owner more than it harms the old owner; if no sale, then value to
current owner is greater than value to the potential owner
o Forced sale is not efficient because refusal to sell entitlement
indicates value to dominant owner exceeds value to servient
owner.

Interpretation of Ambiguous covenants

Intent v. free use

o Traditional view: courts traditionally interpreted ambiguous covenants in the manner
that would be least burdensome to the free use of land

Modern view: is to interpret the intent of the grantor. This must be shown by express
language in the deed or declaration, but may be supplemented by extrinsic evidence
where necessary to interpret an ambiguity.
Third Restatement: suggests it is no longer acceptable that courts should err on the side
of unburdening property from restrictions.

Modifying or Terminating Covenants

1. Changed Conditionscovenants will not be enforced if conditions have (1) changed so
drastically inside the neighborhood restricted by the covenants that (2) enforcement will no
longer be of substantial benefit to the dominant estates.
a. Third restatement: (1) uses terminations rules in place of touch and concern test; (2)
modification of covenant in lieu of termination if modification will allow the covenant to
serve its original purpose.
b. Justifications: implements implied intent of parties; promotes alienability of land;
permitting enforcement after theyve lost utility reduces land values and turns law into
an instrument of extortion.
c. Counterarguments: parties did not provide covenant would terminate without
unanimous consent; inefficient to force beneficiary to sell an entitlement
d. Development: began as equitable servitudes, extended to Real Covenants, and now
easements
2. Relative Hardshipa covenant will not be enforced if the harmed caused by enforcement, that
is hardship to the owner of the servient estate, will be greater by a considerable magnitude:
than the benefit to the owner of the dominant estate.
a. Hardship great, benefit smalllikely no
b. Hardship great, benefit greatlikely no
c. Third Restatementtreats relative hardship not as a basis for terminating or modifying
servitudes, but rather a factor
i. Hardship great, benefit smallnon-enforcement may be appropriate, but some
amount of damages is appropriate to compensate for loss of benefit of the
covenant
3. Conduct of the Parties
a. By their own termscovenants that terminate within a stated number of years
b. Mergerburdened and benefitted estates come under ownership of the same person
(of burdened and all benefited estates)
c. Releaseall parties affected by the covenant may agree to terminate the covenant or
release the property from it (with consent of all benefited estates)
d. Equitable limitations on enforcement
i. Unclean handsthe complaining party violated the covenant
ii. Acquiescence or waiver(more useful in covenants context) servient owner
violates the covenant and the servitude beneficiary fails to object, then that is
waived

1. Equitable doctrine; court will pay attention to what you acquiesced to

2. Lachesowner has waited too long to enforce her rights and may be
barred from doing so, if the other party has changed her position in
reliance on such failure (was defendant prejudiced?); depends on
statute of limitations (sets a suitable waiting period)
iii. Abandonmentbeneficiary relinquishes rights created by a servitude; the
beneficiary must affirmatively act in a manner inconsistent with the
continuation of the servitude (demonstrates intent not to enforce easement);
recognized in context of multiple or repeated violations
iv. Equitable defenses (for equitable servitudes)
1. i.e. clean hands, laches, estoppel, Bona Fide Purchaser, balancing of
hardships
a. Balancing of hardshiphow much would defendant/plaintiff be
hurt if the equitable remedy is granted or denied? Court may
ask for damages
v. Estoppel(Sturley says more meaningful in easements context) if a servitude
beneficiary represents to the owner of a servient estate by conduct, words, or
silence, an intention to modify or terminate the servitude she may be estopped
from enforcing the covenant if the servient owner changes her position in
reasonable reliance on such representation, if reliance is reasonably
foreseeable.
vi. Change of neighborhood doctrine (doctrine of changed circumstances) (See 1)
vii. Adverse possessionopen and notorious violation of covenant without
permission for statutory period may terminate the covenant by prescription.
viii. Miscellaneous (condemnation, bankruptcy, Recording Act, foreclosure, new
statutes)
4. Statutory Regulation
a. Marketable title actsterminate restrictive covenants if they are not re-recorded after
a specified period of time
b. Statutory limitsrigid time limits on enforceability of covenants and do not let them be
discontinued by simply re-recording them.
c. Statutory changed conditions provisionssome states adopt statutes that expressly
adopt versions of the changed conditions doctrine