Easement by Express Agreement

150 150 tony

License: O’s revocable invitation to others for limited access to P

Servitude: creates a rt or obligation re: P that “runs with the land

Easement: right you give another to use your land in a certain way;

    ▪ Excpn: Negative Esmt (eg, solar, historic, conserv’n); act like RCs

Real Covenant: obligates you to use/not-use your land certain way;

   Equitable Svtd: like RC; easier to create, injunction rather than dmgs.

Ignore: constructive trust, profit a prendre

Easement intended to be a permanent interest;

License—even extended over time—revocable at O’s will. 

Easement by Express Agreement

Same as any other interest in land—

   by a deed that complies w/ Statute of Frauds! 

▪ You put it in writing,

Specify parties & what you’re conveying,

▪ Use words of conveyance,

▪ Grantor signs it. 

Easement by Express Agreement

You can “Grant” an E:


     –Rt of Way across land for use as footpath

   In larger conveyance

     –Sell rear lot w/ esmt over front driveway 

You can “Reserve” an E:

   When you convey land but keep right of access for yourself

–Sell land but reserve esmt to continue using footpath

–Sell front lot and reserve esmt over driveway to access main road

Reserve E in a 3d party? 

Affirmative & Negative Easements

Affirmative esmts: (vast majority!) confer a right to someone else to do something affirmative on your land

   ▪ pass over it (to get to the road or lake, etc.)

   ▪ dig under it (to get to buried power/sewer lines, etc.) 

Negative easements: (generally disfavored & unenforceable) give someone else a right to restrict what you can do on own land

Why traditional hostility to negative esmts?

Still, a few exceptions to the rule…  examples?

Permissible Negative Easements

For Lateral Support 

▪ Why needed?  What about CL duty of support? 

For Light and Air

▪ For the Prah’s and Eden Roc’s of the world!


To prevent interference w/ Flow of Water or Aqueduct

▪ If Armstrong culvert delivered water other direction

If I want an easement from neighbor to forever

      prevent her from painting her house purple?

Easememts (“esmts”) v. Covenants (“RCs”)

If it’s an affirmative right for someone

   to do something on someone else’s land:

   (eg, walk, drive, or dig on it…) Easement

If it’s an obligation that: 

   restricts what O does on own land (no X-mas lts)


   requires O to do something in light of ownershp

     (e.g., pay dues, groom bushes…) Covenant

   ▪ (NB: or one of the permitted Negative Easements)

Easements & The Statute of Frauds?

SOF applies as much to grants of esmts as to other interests in land… 

…but a few important exceptions:

Easement by Estoppel

Easement by Necessity

Easement Implied by Prior Use

“When is a Revocable License NOT a Revocable License?”

KY SCT: “[W]here a license is not a bare, naked right of entry, but includes the right to… construct[] improvements thereon,

“the licensor may not revoke the license and restore his premises to their former condition after the licensee has exercised the privilege given by the license and erected the improvements at considerable expense.” 

In other words…

“When is a Revocable License

NOT a Revocable License?”

Normally, licensor may revoke license at will, and

   if L’ee presumes otherwise, out of luck!  But if…

W/L’or’s knowledge, L’ee makes costly invstmnt

   that only make sense if the license is perpetual, then

   burden shifts to L’or to clarify if isn’t! 

L’or must put a quick stop to L’ee’s investment

or surrender the revocability of the license. 

The Oxymoron of the Irrevocable License:

The Doctrine of “Easement by Estoppel”

Like promissory estoppel: when someone else relies on your promise to her detriment, the law forces you to make good on your promise! 

But did the Holbrooks actually promise anything?


Promises in Easement by Estoppel

Words Mixed w/ Deeds” can create

   reasonable expectations of continued access

   ▪ that—when detrimentally relied upon—

   ▪ function legally like a promise

Dangers of this rule? 

Why have it? 

Cf. Adverse Possession 

Who Should Bear the Loss?

If both parties are really at fault…

Why reward T’s dangerous assumption…

(of continued access to road)

   …over H’s dangerous assumption

(that T understood license was revocable)???

Why not place the burden on the licensee?

  1. Private Land Use Controls
      1. Licenses
      2. Easements
  1. Easements
              • Rights arising from a grant of a right by one L to another
              • Creation and termiatnion. An easement can be created by an express agreement, estoppels, implication from an existing use when land is divided, by necessity when land is divided, and by prescription.
  1. Intro
  1. Definition: An easement is a grant of an interest in land that entitles a person to use land possessed by another.
  2. Types of Easements (affirmative/negative)
                1. Affirmativeowner of an AE has the right to go onto the land of another (servient land) and do some act.
                2. NegativeO of NE can PREVENT owner of servient ladn from doing some act on the servient land. Rare.
  1. Easements appurtenant or in gross (all easements are either appurtenant to toehr land or in gross)
  1. Easement appurtenant: If an easement benefits its owner in the use of another tract of land, it’s appurtenant to that land. Land benefited is dominant estate, land burdened is servient estate.
  2. Easement in gross: If an easement does not benefit its owner in the use and enjoyment of his land, but merely gives him the right to use the servient land, easement is in gross.
              • in gross only means easement is not appurtenant.
  1. Easement appurtenant favored: if ambiguous, appurtenant is favored.
                  1. Why?

ONE:  Intent. Parties usually have in mind that easement will benfit a tract of land. If the benefit of the easement will be more useful to a successor owner of that tract than to original owner of easement after he sells the tract, this indicates the parties intended an appurtenant easement.

TWO: land value is increased. EA increase total value of land. In gross does not increase the value of land, and it in fact decreases the total value of land by the amount of damage to the servient tenement.

    1. Easement is interest in land. Burden passes to subsequent owners of the servient land.
    2. Easement v. License
              • Licensepermission to go on land belonging to licensor. Revocable at will of licensor.
  1. Creation of Easements
              • Easements may be created by express grant or reservation, by implication or by prescription
  1. Express grant: an easement over grantor’s land may be granted to another.
                1. Statute of Frauds
              • Easement must satisfy SOF. Unless exceptions to SOF applies, creation of an easement requires a written instrument signed by grantor. (failed attempt to create an easement may still result in license…)

(2) duration: can be created to endure for life, period of years, forever.

  1. Express Agreement
  2. By Estoppel

License may be irrevocable under rules of estoppels. If licensee has constructed substantial improvements on either the liecnsor’s land or licensee’s land, relying on the license, in many staets the licensor is stopped from revoking the license. The theory is that it would be unfair to the licensee to permit revocation after he spends money in reliance.

Holbrook v. Taylor


In 1944 D gave permission for haul road to be constructed on his property.  The road was used by a nearby mine, by D, and D’s tenant.

P purchased the adjacent property in 1964 and used the road for access during the construction of their home.  After the house was completed, P’s continued to use the road for access to their home, made improvements, and generally maintained the roadway.

A dispute later arose and D attempted to prevent P from using the road, P sued claiming an easement by estoppel


Where use of a roadway, improvements to, and maintenance of a roadway all have occurred with the tacit approval of the landowner, the landowner is estopped from barring access to the improving party. 


It would be unconscionable to allow an owner to revoke such a license after he has watched the licensee expend money and effort on reliance on the existence of such a license. 

Whether or not there was permission, P’s expended money with D’s knowledge and in reliance that their continued use would be permitted.


Words mixed with deeds can create reasonable expectations of continued access that, when detrimentally relied upon function like a promise. 

In this case; although no promise was actually made, the act of allowing P’s investment in the land functioned as a promise to allow continued access.  Easement by Estoppel is applicable in this case.

  1. Holbrook v. Taylor
  1. By Necessity

Easement by Necessity

Arises only when:

(1) an existing parcel is subdivided and

(2) one parcel is left landlocked

     (no direct access to a public road)


(3) Can only be implied over remaining lands of grantor—not over neighboring lands that could also connect parcel to a public road! 

  1. Finn v. Williams

Finn v. Williams…

Where there has been unity of title…

E by Necessity may lay dormant through several transfers of title, pass with each…

And be exercised by some later owner! 

Anything curious re: timing?  Then why rule? 

  1. By Prior Use

Easement Implied by Prior Use

When O of large tract (or 2 adjoining tracts) sells part & keeps rest, Easement by Prior Use may be claimed if four criteria:

  1. Two parcels previously owned by a common grantor,
  1. one previously used for benefit of other (‘seems perman’t’)
  1. in an obvious and continuous way,
  1. and continuation of the use is “reasonably necessary” for enjoyment of retained land.


“What does ‘Necessary’ mean?”

E by Necessity vs. E by Prior Use

E by Necessity = importance of Esmt to access landlocked parcel

E by Prior Use = importance of Esmt to enjoyment of existing use on retained parcel

▪ When prior use established, criteria is not strict necessity but that use is “important” or “highly convenient” to enjoyment of benefited lot

Rsnbl Necessity BT: rqd necessity reduced by obviousness of PU

Common Easements Implied by Prior Use

Most concern rights of way for people or vehicles; also:

  1. Access to sewer lines crossing under the grantor’s remaining land;
  1. Rights of entry to maintain and repair a common structure, like a retaining wall;
  1. Rights to obtain water from a well or aqueduct; 
  1. Controversial: access to public recr’nl areas (lake or beach).

Easement Vocabulary

The Benefit of an esmt is the legal right to enforce performance of the obligation entailed in the esmt

      e.g., demand access

The Burden of an esmt is the legal responsibility to perform on the obligation

         e.g., provide access

  1. Granite Properties
  1. Running with the Land
  1. Green v. Lupo

Green v. Lupo

Lupos bought property from the Greens (secured by a lien held by Greens).

Greens released their lien in exchange for a RoW over another parcel that the Lupos owned. 

K:  “to Don & Florence Green… for ingress and egress and for road and utilities” purposes

At time, Greens had single cabin on parcel.  Later, added mobile home park; tenants used RoW as practice runway for motorcycles.

  1. In Gross or Appurtenant

Easement In Gross

Benefits a specific party, benefit doesn’t attach to land.


Utility easement

Public trail easement

Easement in gross burdens one parcel to

   benefit use by a specific person or group of persons.

Example from class?

Appurtenant Easement

Benefits users of a specific parcel of land that has some rel’p to the burdened parcel (usually proximity). 

Burdens one parcel…

   to benefit use of another.

Examples from class?

The “Servient” Estate

The parcel burdened w/ esmnt is called the

    servient estate, b/c used to service the other.   

The “Dominant” Estate

The parcel benefiting from the easement

   (the one “served” by the servient estate) is

   called the dominant estate

Which is which in the Heymann v. Ryan esmt?  In esmt to BHK?

When does the Burden of an Esmt “Run”?

Esmts by Estoppel, Necessity, Prior Use run if meet defn’l criteria. 

Benefit of an appurtenant esmt presumed to run w/dominant estate. 

What needed for burden of E to bind successors on servient lot? 

   (1) Conveyed in a writing that satisfies SOF;

   (2) Grantor intends that it run w/land; and

   (3) Subsequent owner of servient estate has notice.   

Years before selling rear lot to Prof. Heymann, I granted & recorded a perpetual easement across lot to BHK to visit Betsy.  What 3 ways could make the burden run to bind Prof. Heymann on the new lot? 

You’re on Notice!”

  1. Actual notice: Heard, read, or was told about it.

Buyer actually knew about it!

  1. Inquiry notice: Might have seen a well-beaten footpath to hog pen, or seen BHK trouping across yard toward Betsy. 

Rsnbl buyer follows up w/“inquiries” to find out if means a svtd!

  1. Constructive Notice: B/c deed recorded, she’s on constructive notice even if never bothers to check the chain of title!  Even if she doesn’t know about it, she should have known

Rsnbl buyer researches chain of title before buying real prop!

  1. Scope
            1. Cox v. Glenbrook
  1. Apportionment
            1. Henley v. Continental Cable television

Exclusive v. Nonexclusive Easements

Assuming cable TV is within scope of original E, the question is

  whether the esmt was exclusive, or what rights Π retained

If Non-Exclusive: Grantee shares the permitted use w/ grantor

    ▪ Grantor retains continued rights to engage in use or further assign it

  Grantee can’t apportion benefit to others, b/c might interfere w/ grantor

If Exclusive: then the esmt is apportionable by grantee

       Can assign benefit to others w/o interfering w/ grantor’s rights

  Absent exc. wear & tear, grantor sustains no loss if E shared

The Cases All Raise Questions About Scope…

The Kind of uses contemplated by the original grant

   ▪ Did Green esmt allow for motorcycle racing, or just ingress/egress? 

   ▪ Was Henley easement good for cable TV as well as telephone lines? 

The Divisibility of uses contemplated by the original grant

   ▪ Was Cox easement expandable from use by 1 to use by 50 families? 

   ▪ Could the utilities infinitely subdivide the benefit of the Henley esmt?

When the right kind of use expands into an Unreasonable Burden

▪ Interpreted according to grantor’s intent, but if ambiguous, balances:

  DE’s free development v. SE’s security from unanticipated ovrburden

  1. Modifying and Terminating Easements

Terminating Easements

(1) By Written release by holder

(2) By Esmt’s Own terms (e.g., if stated to terminate on transfer/death)

(3) By Merger, if dominant & servient estates become held by same O

(4) By Adverse possession by O of servient estate (works like merger)

(5) By Abandonment, if holder’s conduct demonstrates clear intention

(6) For Frustration of purpose, if intended purpose becomes imposible


      1. Equitable Servitudes

Intro to RC & EQS: 

Thank Pre-Industrial England!

Developed from limitations of 19th cntry English CL

K law didn’t allow for assignment to 3d parties

Obstacle to restricting land uses past title transfers

K exceptions in context of real property became:

   Real Covenants (dmges) & Equitable Svtds (inj)


NB: 3rd Restatement Convergence — A “Law of Servitudes”?


(Affv) Esmt: = right you give others to use your land a certain way

RC & EQS:  rts you give others to require you to use land certain way 

RC = Pledge you make either to do something or not do something

     on your own land, for the benefit of someone else’s land.

       What pledges in Yellow Hse?  Tulk?  Who for whose benefit?

EQS = Same, except (1) no privity required (or writing if estoppel);

               (2) remedy (RC: damages; EQS: injunction)

    Which remedy seems more valuable with regard to land use?

Requirements for RC to Run

(1) Must be in a writing that satisfies SoF

(2) Promisors must intend it to run to successors

(3) Servient estate O must have notice

(4) Horizontal & vertical privity of estate

(5) Obligation must touch & concern DE & SE

Requirements for EQS to Run

Same as for RC except:

▪ Don’t need privity of estate             Writing rqmt relaxed if estoppel

(1) Usually in a SOF-writing (unless estoppel)

(2) Promisors must intend it to run to successors

(3) Servient estate O must have notice

(4) No requirement for privity of estate

(5) Obligation must touch & concern DE & SE

        1. Tulk v. Moxhay

Tulk v. Moxhay (1848 Ct. of Chancery)

1808: Tulk & Elms covenant that “Elms, his heirs & assigns” will:

“maintain [the Square] in its then form, and in sufficient and proper repair as a square garden and pleasure ground, in an open state, uncovered with any buildings, in neat and ornamental order”

…and that area residents, including Π’s tenants, can rent access to gated garden.

Writing?   Intent?   Notice?   Privity?   T&C?   Court?

        1. Touch and Concern Test

The “Touch & Concern” Test

Obligation must “T&C” both SE & DE to fully run w/land

   ▪ The only substantive requirement for RCs & EQSs to run…

   ▪ …b/c tells us what kind of pledge qualifies to run with the land

Nutshell: A pledge touches & concerns if it is

   really about the land, not the people, in story 

But how do we know when that’s true? 

Does the Obligation “Touch & Concern?”

To run, it must T&C both servient and dominant estate

T&Cs SE if relates to use of servient land 

  T&Cs DE if improves enjoyment of DE or increases its market value.

T&C Servient Est. “if relates to use of servient land”

A pledge to do or not do something on land

   normally satisfies this part of test

       –to build a fence

–to maintain a garden

–to not build high-rise or dig open-pit mine

A restriction on kinds of uses of land will also suffice

–to use land only for compatible commercial development

–to restrict structures to single-family residential homes

T&C DE “if improves enjoyment or market value”

Must benefit not just current O, but also future Os of DE 

Think of it this way: if avg purchaser would pay more for

   DE b/c of the benefit conferred by pledge—it probably T&Cs!

Or: Who will value the benefit more after transfer

   of the DE—the original covenantor or the successor?

    SE pledge to not paint house purple? 

SE pledge to raise poodles on premises?

        1. Intro. To RC
        2. Whitinsville Plaza v. Kotseas
      1. RC and Privity of Estate

Introduction to Privity of Estate

Fancy way of describing relationships btw parties

   regarding estates in land.  For RCs, 2 different kinds: 

Horizontal privity: rel’p created btw parties to a real covenant

   in which one parcel is burdened for benefit of another.  (In WP?)

Vertical privity: rel’p btw original covenantors and successors

   that allows RC obligation & benefit to run w/ land.  (In WP?) 

But what is privity?  What are these rules for? 

Privity of Estate: What is it for?

RC stories can have long casts of characters—original covenantors, subsequent owners, renters, occupiers, adverse possessors, neighbors, etc.

Privity tells us who among these has the legally meaningful relationship to the covenant—i.e,

who, at any given time, it obligates or empowers.

Once you figure out who’s in privity w/whom, you know

who’s entitled to benefit of the RC & ▪ who’s responsible for burden

—or who can sue for breach, and who will be held liable for breach

Remember: who is in privity with whom changes over time

that’s what happens when a covenant runs with the land!

        1. Whitinsville Plaza v. Kotseas
        2. Horizontal and Vertical Privity
        3. Implied Reciprocal Negative Servitudes (IRNS)
          1. Evans v. Pollock
          2. Sanborn v. McLean
          3. Riley v. Bear Creek Planning Committee
  1. Interpretation and Modification of Covenants
    1. Ambiguous Language
            1. Blevins
    2. Changed Language
            1. El Di v. Bethany Beach
    3. Relative Hardship and other defenses
  2. Racially Discriminatory Covenants
    1. Shelley v. Kraemer
    2. Evans v. Abney
  1. Common Interest Communities
        1. HOAS, Coops and Condos
          1. HOAs
          2. Coops
          3. Condos
        2. Community Land Trusts
          1. Dudley Street
        3. Private Governments
          1. Boss Thy Neighbor