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TEST TI P: You must know the distinction between covenants, licenses, easements and profits.

A covenant running
with the land is a hybrid concept lying somewhere between an interest in land (e.g., an easement or a profit) and a
mere personal agreement. A covenant runs with the land when the burdens, benefits, or both pass to succeeding
holders of the estate. A license, on the other hand, is a mere personal privilege to make use of land which is granted
by the owner to another. I t is not an interest in land and is always revocable except for a license coupled with an
interest. An easement is an incorporated interest in property of another that allows the easement holder the right to
make limited use of the land of the owner/grantor. Since, it is an interest in land, it requires compliance with the
Statute of Frauds. Thus, a license may be distinguished from an easement since the former requires no formalities
for its creation as does an easement. A profit (or profit a prendre) is a right of one person to go onto the land in
possession of another and take therefrom either some part of the land itself or some product of the land. You can
distinguish an easement and a profit by the fact that an easement grants to its holder only the right to use the land of
another, whereas a profit grants to its holder the right to take either the soil itself or the right to take product of the
land such as gravel, minerals, etc.

Easements, and covenants are both nonpossessory interests in land, but beyond that, there is much to distinguish
them. A person who holds an easement has the right to use another's tract of land for a particular person. For
MBE purposes, some heavily tested areas in respect to easements involve the creation, (including expressly and
impliedly created easements), as well as the termination of easements.

Covenants, normally found in deeds, are written promises to do something on the land, or written promises to
refrain from doing something on the land. The most heavily tested area in respect to covenants deals with
determining whether a covenant "runs with the land," so that subsequent owners are benefited or burdened by
the covenant regardless as to whether the covenant was in their specific deed.

Both the burden and the benefit of the covenant can run with the land. For the burden to run, the original
covenanting parties must have: (1) intended that successors in interest would be bound; (2) the subsequent
purchaser for value must have had notice (actual, inquiry or record) of the covenant; (3) there has to have been
horizontal privity between the original covenanting parties (for example a grantor-grantee relationship); (4)
there has to have been vertical privity (the subsequent purchaser must hold the entire durational interest held
by the covenantor at the time he made the covenant; and (5): the covenant must touch and concern the land.

The requirements for the benefit of the covenant to run with the land are the same, though there are less of
them. Intent, vertical privity, and touch and concern, are all that is required.

EASEMENTS

HYPO: Betty is granted an easement by Grant for a 20 ft. road. She receives this easement by express grant, but never
records. betty uses the road and ultimately paves a 30 ft wide road and begins using it for part residential and part
commercial use. Grant sells his land (the servient tenement, the land that is burdened by the easement) to Buyer.

ISSUES:
(I) Does Betty have a valid easement?
1. Is the easement appurtenant or in gross?
2. Is the easement affirmative or negative?
3. Creationhow was the easement created (PING)?
4. Scopewhat is the scope of the easement? was the scope exceeded/overburdened?
5. Was the easement terminated?
(II) Does Buyer take the land subject to Bettys easement?
1. Notice
-Actual Notice
-Inquiry Notice
-Constructive Notice
2. Recording Act Statutes
3. Warranty Deeddiscuss the present & future covenants (6 total)

















































Real Property: Easements

Easements come up in quite a number of contexts on the MBE. Two areas that you'll
need to know well are the creation of easements, and the termination of easements.

Creation of Easements:

An easement can be created through an express grant. Because an easement is an
interest in land, the Statute of Frauds applies, and any express grant of an easement
must be in writing, and signed by the party to be charged (in this case, the holder of the
servient tenement--the person whose land will be burdened by the easement). A
grantor can also convey title to land but reserve for himself the right to continue to use
that land for a specific purpose. In essence, the grantor has reserved an easement for
himself, and as such, the same formalities for an express grant apply.

Another method of creation, and one that is often tested, is an easement by
implication. The important difference here is that an easement by implication need not
comply with the Statute of Frauds, and, therefore, a writing is not required.

One easement by implication is an easement implied from existing use. There are strict
requirements that have to be satisfied for this easement to apply. Look for a situation
in which there is one tract of land. Prior to the division of that single tract, an apparent
and continuous use exists on the part of the land that is not being granted to another.
That use is necessary for the enjoyment of the part of the land that is being granted to
another. Finally, the court must determine that the parties to the transaction intended
the use to continue after the division of the land.

The next easement by implication is an easement by necessity. An easement by
necessity arises when a landowner sells a portion of his tract and by this division
deprives one lot of access to a public road or utility line. The owner of the land that is
now deprived of such necessity has the right to cross the tract of land that will allow
the owner to reach the public road or utility line.

Finally, an easement by implication can be created by prescription. This is, essentially,
adverse possession. Acquiring an easement by prescription requires that one uses
another's land (rather than possesses the land as in traditional adverse possession) and
that the use is open and notorious, adverse, continuous and uninterrupted, for the
statutory period.

Termination of Easements:

Not unlike the creation of easements, easements can be terminated in a variety of
ways. One is by stated conditions in the writing of an express easement. The original
easement grant can specify when or under what conditions the easement will
terminate.

In addition, an easement can terminate due to merger. If the same person acquires
ownership of both the easement and the servient estate, the easement is destroyed. So,
for example, assume that X is the owner of an easement allowing X to cross over Y's
land. If X subsequently purchases Y's land from Y, X's easement over Y's land
terminates, as X now owns the easement, and the servient estate, causing the easement
to merge into the servient estate.

The holder of the easement can also abandon the easement. In order for abandonment
to apply, the holder must demonstrate by physical action (for example, building a wall
that blocks access to the easement) an intent to permanently abandon the easement.
Note these requirements carefully, as a correct answer choice will often ride on the
requirement of intent. Merely expressing a wish to abandon will not suffice.

However, if the intent to permanently abandon the easement is not obvious, consider
estoppel as a method of termination. Oral expressions of an intent to abandon, without
any physical action accompanying that expression, generally do not rise to the level of
abandonment of the easement. But if the owner of the servient estate changes his
position in reasonable reliance on the representations made by the owner of the
easement, the easement terminates through estoppel.

If an easement was created by necessity, the easement expires as soon as the necessity
ends.

Lastly, an easement can terminate by prescription, just as an easement can be created
through prescription. To terminate by this method, there must be an adverse,
continuous interruption of the use of the easement for the statutory period.


INTERESTS IN LAND
(1) Estates
(2) Easements
(3) Covenants
(4) Equitable Servitudes
(5) Options
(6) Security Interests

COVENANTS & SERVITUDES
Land subject to obligations or use restrictions is conveyed and the question raised is: Does a covenant bidn current
owners? or Does an equitable servitude now restrict land use?

EASEMENTS
An easement is claimed or suggested. The question raised is: Was an easement created, and does it stille exist?




















































EASEMENTS

Types
(1) Easement Appurtenant
(2) Easement in Gross

Creation of Easements
Express Agreement
By Implication
By Prescription
Transfer of Easements
Use of Easements
Repair of Easements
Termination of Easements

LICENSES & PROFITS

License
Failed Easement
Irrevocable license
Profits

RESTRICTIVE COVENANTS
Covenants running with the land at law
4 Requirements for a covenant to run with the land at law:
Equitable Servitudes
3 Requirments to enforce equitable servitude
1. ESs in subdivisions (aka reciprocal negative servitudes)
2. Equitable defenses to enforcement
3. Termination of ES

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