Real Estate Agent with Perry Wellington Realty



They are a right to the land, can be recorded

  1. Easements – right to cross the owners land (negative easement – right to prevent owner from doing something)

  2. Restrictive Covenants – promise not to do something on your land

  3. Profits – right to enter property and remove something (timber, coal, etc.)

    1. Appurtenant – runs with the property

    2. In gross – granted to a specific third party (can be assignable)



Holbrook v. Taylor p. 791

One property is landlocked and the neighbor lets him use the road – no prescription

He builds a house and the neighbor no longer lets him use the road

Court uses estoppel to create an easement – you watched him build the house in reliance


Willard v. First Church of Christ, Scientist p. 785

The parties intend to create an easement and reference it in the deed but don’t actually create it

Problem is doing it al in one document instead of 2 makes it unclear


Van Sandt v. Royster p. 796

Deed does not mention any encumbrance but the sewer runs along their property

Should have put an easement in the deed

The parties were put on inquiry notice as they new it had plumbing and the only sewer was on the other side of their property

Good faith purchaser for value trumps unless you have inquiry notice


Easements can be implied

  1. from an existing use

surely the parties intended to make an easement

courts are unwilling to do it for an existing use unless necessary

  1. by necessity

if landlocked the court can imply an easement to make the land useful

Easement by necessity ends when the necessity ends

In some western states you can condemn an easement by necessity if landlocked and then pay the amount of damage


Othen v. Rosier p. 802

Plaintiff owns a tract with no frontage and Rosier shuts down acess to the road

Court rules that you must show necessity at the time of the transaction

There is also no prescription as the plaintiff used the road by consent


Leo Sheep Co. v. US p. 811

US tries to condemn an easement by necessity

US never has necessity because it has the power of eminent domain



Like adverse possession but for an easement

Only have to act like you have a right to cross the property

Each trespass is a new cause of action – SOL never runs

Court invented the lost grant doctrine to cut off old claims of rights


Matthews v. Bay Head Improvement p. 816

Portion of shore to high tide is public land

Court finds that they need access to it and a portion of the rest of the beach to really use it

Club can charge membership fees but must make memberships available to all



Miller v. Lutheran Conference and Camp p. 824

Artificial lake – no riparian rights to the water

There is a right to swim by prescription but is it granted to Rufus?

They appear to be tenant in common of an undivided interest

Court uses one-stock rule

Must be unanimity about decisions about who can use the lake

This rule is often used where there is a need to act as one person to avoid exploitation

Result is that you can create a use slice of whatever scope you want


Brown v. Voss p. 833

Owner of B has an easement over A and then wants to use it to access parcel C

Court states that the easement can only be used to access the parcel to which it is appurtenant

Can contract around this rule in the easement

Courts ruling is a little odd but restricts it to use for which it was intended


Preseault v. US p. 843

RR were built on right of ways that they now want to preserve for other uses

Court finds that the government abandoned the easement and must pay for rails to trails program

Land owners must be paid for a continuing easement

Easement can terminate by abandonment, contract, or prescription


Negative Easements and Equitable Servitudes

R.3rd says you can do whatever you want and as long as it is recorded it is binding

Originally you needed both horizontal and vertical privity (usually resolved by a straw man)

Tulk created equitable servitudes


Tulk v. Moxhay p. 864

Owner of land in a square transferred it with a covenant to retain it as a park

English courts generally rejected negative easements but to do otherwise would be giving him more than he paid for

The owner likely would not have transferred the property if he knew it was not enforceable

Court creates the doctrine of equitable servitudes


3 types of arrangements

1. Easements – first to develop historically

Property right, can be given to another person

No horizontal privity is required

Easements in gross are hard to keep track of but necessary (RR, Utilities)

They are transferable as long as they indicate such an intent

Hunting easements are generally not construed as transferable

2. Real covenants – second to develop (mostly used in the US)

Courts view them as contracts

Horizontal privity is required (privity of estate or you bind 3rd parties)

Must touch and concern the land (relevant to ownership of property)

Only applies to the estate (not adverse possession)

  1. Equitable servitudes – established in Tulk

Must be notice, must touch and concern the land, no privity requirement

They are in the land, not the estate

Restatement no longer requires touch and concern (public policy exceptions)

R.3rd §3.1 p. 886


Sanborn v. McLean p. 870

Owner wants to put a gas station in the subdivision

Deed does not have restrictive covenant but it still applies

No need to look at other deeds but you do have inquiry notice

Court uses doctrine of implication to create a restrictive covenant


Neoponsit Property Owners v. Emigrant Industrial Savings p. 875

Owners stop paying and bank forecloses – pays HOA dues but not arrears

Court says they have a right to collect the money but no right to the property

It does touch and concern the property as it affects the value (keeps property in good condition)


Hill v. Community of Damien of Molokai p. 893

Home for aids patients in subdivision limited to single family use

Court says the covenant applies to type of building and not type of residents


Caullett v. Stanley Stilwell & Sons p. 888

Developer sells land with covenant that when the buyer builds he will use the developer

Court says he can convey his land without restrictions


Western Land v. Truskolaski p. 911

When perpetual covenants are not longer appropriate due to changing circumstances (no longer enhance value) the court will modify them or find them unenforceable


Pocono Springs Civic Association v. MacKenzie p. 921

Buyer never builds on land but still has to pay association dues

Tries to give it away as a park, abandon it, and file a declaration saying they don’t own it

Court rules that good title means it can’t be abandoned


Common interest communities

HOA – every lot has an obligation to pay dues (private communities are an extreme form)

Cooperative – all the tenants own the property as a corporation

Creates problems if one tenant stops paying, all the others have to carry his share

Also have the problem of having to buy out other owners once they start getting equity

It was formed to get around the need of livery of siesen for a unit with no land

Condominium – each buyer finances his own unit but there is a condominium association

Owners are member sand they elect a board of directors


Comments (2)

Brian Bender
Perry Wellington Realty - Altoona, PA
Your 24 Hour Realtor
very important dealing with realestate
Feb 04, 2008 01:51 AM
Harrison K. Long
HomeSmart, Evergreen Realty - Irvine, CA
REALTOR , GRI, Broker associate, Attorney

Easements can be implied from an existing use and according to necessity of the parties.  Did you see the California court of appeal 2009 decision confirming easement by necessity of use in Linthicum v. Butterfield, 175 Cal App 4th 259?

Jun 03, 2010 12:27 PM