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Author Topic: Easement or Covenant?  (Read 1055 times)

mutual_biscuit

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Easement or Covenant?
« on: March 31, 2008, 10:09:59 PM »
House A is next door to House B. They are in very close proximity. Between them sits a garage that is attached to House A. However, the owners of house B have the right to use the garage and it's recorded in the deed.

I am correct in assuming this is an expressed affirmative easement appurtenant? What would make this a covenant.

mason123

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Re: Easement or Covenant?
« Reply #1 on: March 31, 2008, 10:38:50 PM »
I do not see how this could not be an easement of the type you mentioned.

I'm not in law school yet, but I tried looking up some information on covenant. When I twisted it in a way that does not seem realistic to your scenario I came up with this.

Can it be considered an expressed negative real covenant if the servient tenement 'promises' not to use the garage with the purpose of yielding the use of the garage to the dominant tenement?

Take what I've said with a grain of salt: I felt compelled to take part. Sorry if I wasted your time.

juliemccoy

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Re: Easement or Covenant?
« Reply #2 on: March 31, 2008, 11:03:06 PM »
House A is next door to House B. They are in very close proximity. Between them sits a garage that is attached to House A. However, the owners of house B have the right to use the garage and it's recorded in the deed.

I am correct in assuming this is an expressed affirmative easement appurtenant? What would make this a covenant.

I think it is a an affirmative easement appurtenant.

1) It's recorded in an instrument-- satisfies statute of frauds
2) gives you the right to be on the property  and right of use (affirmative)
3) The garage = the servient tenement being burdened
4) House A = dominant tenement
3 + 4 = easement appurtenant

But if it is going to be a covenant:
-- the garage touches and concerns the land b/c it is on the property
-- intent is met: The covenanting parties must have intended that the covenant devolve on successors in
interest; and
-- there is privity of estate-- A  (burden) to B (benefit) in horizontal privity 
-- most local statutes of frauds require a covenant to be in writing. That is satisfied here, b/c A granted use of the garage to B in an instrument




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mike4488

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Re: Easement or Covenant?
« Reply #3 on: March 31, 2008, 11:08:30 PM »
Pretty sure this is an easement.  The way I learned it is that easements grant access to property.  Covenants control what use the property can be put to but don't actually grant others access to be on the property.

Very simplified I know but that is the way I understand it.  I have yet to read about a covenant that is actually granting another person to use the property.
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mason123

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Re: Easement or Covenant?
« Reply #4 on: March 31, 2008, 11:29:07 PM »
Well folks, it seems obvious that it is in fact an easement, but I felt like the OP was looking for a way to interpret this as a covenant.

Am I wrong in the way I stretched the facts?

This is extremely interesting. I cannot wait to do this in law school!

mike4488

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Re: Easement or Covenant?
« Reply #5 on: March 31, 2008, 11:46:32 PM »

Can it be considered an expressed negative real covenant if the servient tenement 'promises' not to use the garage with the purpose of yielding the use of the garage to the dominant tenement?


You know i am going to give you an "A" for effort but my tip (not that I necessarily know what I am talking about I am just learning this stuff now as well) but if you have to make something sound that complicated in law school it usually isn't going to be the best answer.
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mike4488

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Re: Easement or Covenant?
« Reply #6 on: March 31, 2008, 11:53:18 PM »
I do not see how this could not be an easement of the type you mentioned.

I'm not in law school yet, but I tried looking up some information on covenant. When I twisted it in a way that does not seem realistic to your scenario I came up with this.

Can it be considered an expressed negative real covenant if the servient tenement 'promises' not to use the garage with the purpose of yielding the use of the garage to the dominant tenement?

Take what I've said with a grain of salt: I felt compelled to take part. Sorry if I wasted your time.

In short, there are a couple of things wrong with the way you analyzed this.  One is that all real covenants or equitable servitudes have to satisfy the Statute of Frauds.  There  is no such thing as an implied real covenant all of them are express so there is no real point in stating that.  Next is that real covenants don't really deal with servient tenements and dominant tenements.  They deal with benefited and burdened property.  Technically speaking there is no servient tenement or dominant tenement.  After that not to sure as to what else you are trying to say so can't say much else.
Boalt Hall '10

mason123

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Re: Easement or Covenant?
« Reply #7 on: April 01, 2008, 12:37:01 AM »
Well I was not exactly keen on the terms for the parties to real covenants until you stated them.

I intended for the servient tenement and dominant tenement to parallel that of benefited and burdened property. Thank you for introducing me to the terms!

Was I mistaken about the 'promissory' foundation of my covenant interpretation?

Let me try and explain. To the extent of my understanding - a negative real covenant is one that requires someone to promise to not do something. What if the deed mentions that the individual owning the burdened property promises not to use the garage, and also yields its use to that of the benefited property? Wouldn't the promise of not using the garage fall under the term covenant?

No idea what I am talking about - I am just participating out of shear interest.

mike4488

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Re: Easement or Covenant?
« Reply #8 on: April 01, 2008, 01:09:55 AM »
Well I was not exactly keen on the terms for the parties to real covenants until you stated them.

I intended for the servient tenement and dominant tenement to parallel that of benefited and burdened property. Thank you for introducing me to the terms!

Was I mistaken about the 'promissory' foundation of my covenant interpretation?

Let me try and explain. To the extent of my understanding - a negative real covenant is one that requires someone to promise to not do something. What if the deed mentions that the individual owning the burdened property promises not to use the garage, and also yields its use to that of the benefited property? Wouldn't the promise of not using the garage fall under the term covenant?

No idea what I am talking about - I am just participating out of shear interest.

No I could tell what you meant when you were talking about the tenements I just wanted to point out that those weren't exact terms.  Hmmm I kind of get what you are saying but really it's an easement and it's pretty hard to make it into a covenant.  One is that I don't remember what the initial fact pattern was but there has to be horizontal privity.  I am not sure if the owners just agreed the garage could be used by the neighbors or if it was actually deeded over in a transfer of an estate.  You can just give somebody a real covenant and have it run with the land.  It has to be given with an actual interest in an estate. 

I guess you could have an equitable servitude because they was constructive notice to the burdened party because it was in some sort of deed but again it just doesn't really fit in with the purposes of an equitable servitude/real covenant.  I mean if it is recorded in the deed it is going to be recorded as an express easement.  It comes down to being an irrevocable right to use another persons land for a specific purpose.  That is the definition of an easement.
Boalt Hall '10

mason123

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Re: Easement or Covenant?
« Reply #9 on: April 01, 2008, 09:13:09 AM »
Thank you!