Termination Expiration date, etc. Terms of the Grant – Purpose ends Easement owner buys servient estate Merger – Usually injunction, not forfeiture Forfeiture for Misuse – Release Requires a writing – Abandonment More than mere non-use, must be and unambiguous identifiable act – that is with the easement use inconsistent RR-Co abandons easement which gov. takes for Preseault v. US – “rails-to-trails” Rule Without regard to documentation, RR acquires only the estate needed – for its purposes almost always an easement Rule in scope almost never encompasses substantive in use – Δ Δ Rule For abandonment, need acts by dominant conclusively and – unequivocally manifesting present intent to relinquish or inconsistent w/ future use Policy Protect subsequent purchasers who may see easement and see – recorded instrument and assume it is part of purchase Estoppel Dominant consents to use inconsistent with easement which he should – know will result in servient owner changing position in reliance materially Prescription Servient prevents use of easement for prescriptive period – Recording Act Subsequent purchaser takes without or actual, constructive, – notice of the easement is not bound inquiry Eminent Domain Government must pay damages to easement holder – RTP §7.10 Court may modify/terminate servitude if circumstances have changed – COVENANTS AND SERVITUDES Running with the Land Eng. Garden in square, servitude to maintain garden Tulk v. Moxhay – – Equitable Servitude Seek injunction, requires notice – Real Covenant Seek damages, requires privity – BOTH require touch and concern Land from Common Owner Notice – Problem Individuals buying from developer @ different times be able – wouldn’t to sue each other to enforce covenants CIRCUIT SPLIT – Gas station in residential neighborhood Sanborn v. McLean – Inquiry Notice Significant # of bound deeds; Uniformity of houses –
Termination Terms of the Grant – Expiration date, etc. Purpose ends Merger – Easement owner buys servient estate Forfeiture for Misuse – Usually injunction, not forfeiture Release – Requires a writing Abandonment – More than mere non-use, must be unambiguous and identifiable act that is inconsistent with the easement use Preseault v. US – RR-Co abandons easement which gov. takes for “rails-to-trails” Rule – Without regard to documentation, RR acquires only the estate needed for its purposes almost always an easement Rule – Δ in scope almost never encompasses substantive Δ in use Rule – For abandonment, need acts by dominant conclusively and unequivocally manifesting present intent to relinquish or inconsistent w/ future use Policy – Protect subsequent purchasers who may see easement and see recorded instrument and assume it is part of purchase Estoppel – Dominant consents to use inconsistent with easement which he should know will result in servient owner materially changing position in reliance Prescription – Servient prevents use of easement for prescriptive period Recording Act – Subsequent purchaser takes without actual, constructive, or inquiry notice of the easement is not bound Eminent Domain – Government must pay damages to easement holder RTP §7.10 – Court may modify/terminate servitude if circumstances have changed COVENANTS AND SERVITUDES Running with the Land Tulk v. Moxhay – Eng. – Garden in square, servitude to maintain garden Equitable Servitude – Seek injunction, requires notice Real Covenant – Seek damages, requires privity BOTH require touch and concern Land from Common Owner – Notice Problem – Individuals buying from developer @ different times wouldn’t be able to sue each other to enforce covenants – CIRCUIT SPLIT Sanborn v. McLean – Gas station in residential neighborhood Inquiry Notice – Significant # of bound deeds; Uniformity of houses
Property_Outline_Sterk_Spring_2012.docx