Servitudes
I. Express Easement
a. Express easements are “voluntarily created in a deed, will or other written
instrument.”1 This type of easement arises when a grantor conveys an
easement to another person.
b. The easement holder has the duty to maintain the easement.2 The owner of the
easement has the right to make repairs and improve the easement if it does not
interfere with the holder’s use and enjoyment of the easement.
c. To create an express easement, the deed must contain the following:
(1) Be in writing,
(2) Identify the grantor and grantee,
(3) Contain words manifesting an intention to create an easement,
(4) Describe the affected land, and
(5) Be signed by the granter.3
d. You can terminate an express easement for the following reasons:
(1) Abandonment: “Abandonment will be found if the holder both stops using
the easement for a long period and takes other actions that clearly manifest
intent to relinquish the easement.”4
(2) Misuse: “Some courts hold that misuse by the easement holder will
extinguish the easement in cases where injunctive relief is wholly
ineffective.”5
1 John G. Sprankling, Understanding Property Law 548 (4th ed. 2017).
2 Easements Under Property Law, Justia (Dec. 2023), https://www.justia.com/real-estate/home-ownership/owning-
a-home/easements/.
3 Id. at 548 and 549.
4 Id. at 568.
5 Id. at 569.
(3) Prescription: “The servient owner’s conduct must substantially interfere
with the holder’s use of the easement.”6
II. Real Covenant
a. “A real covenant is a promise concerning the use of land that (1)
benefits and burdens the original parties to the promise and also their
successors and (2) is enforceable in an action for damages.”7
b. “The burden of a real covenant describes the duty to perform the
covenant’s promise or not to do something if the covenant is a negative
promise.”8
c. “Covenants are typically set forth in a deed, lease, or other written
instrument between the covenanting parties.”9 The following elements
are required for the burden of a real covenant to run with the land:
(1) The covenant must be in writing,
(2) The original parties must intend to bind their successors,
(3) The covenant must “touch and concern” land,
(4) Horizontal privity must exist,
(5) Vertical privity must exist, and
(6) The successor must have notice of the covenant.10
d. There are two ways to terminate a real covenant:
6 Id. at 569.
7 Id. at 575.
8 Susan Nerlinger, Property Law: Real Covenants, Legal Match, (July 5, 2023), https://www.legalmatch.com/law-
library/article/property-law-real-covenants.html.
9 Id. at 578.
10 Id. at 578.
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(1) Abandonment: “Occurs when the conduct of the person
entitled to the benefit of the covenant demonstrates the intent
to relinquish his or her rights.”11
(2) Changed Conditions: “A covenant becomes unenforceable
when conditions in the neighborhood of the burdened land
have so substantially changed that the intended benefits of
the covenant cannot be realized.”12
III. Equitable Servitude
a. “An equitable servitude is a promise concerning the use of land that (1)
benefits and burdens the original parties to the promise and their successors
and (2) is in enforceable in equity.”13 The equitable servitude is a tool that
allows a promise to be enforced by or against a successor party under limited
circumstances.
b. “The original parties are bound as a matter of contract law; property law
determines whether the burden and benefit of the promise run to their
successors.”14 “The promisor’s duty to perform the promise is known as the
burden when the promise’s right to enforce the promise is called the benefit.”15
c. An equitable servitude is created when the following elements are satisfied:
(1) The promise must be in writing or implied from a common plan.
(2) The original parties must intend to bind successors;
(3) The promise must touch and concern land; and
11 Id. at 589.
12 Id. at 589.
13 Id. at 595.
14 Id. at 597.
15 Id. at 597.
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(4) The successor must have notice of the promise.16
d. Termination may occur due to the following:
(1) Anti-Discriminations protections: “Congress adopted the Fair Housing Act
of 1968 which prohibits discrimination in the sale or rental oh housing
based on race, color, religion, sec, national origin, familial status or
handicap.”17
(2) Changed Conditions: “This doctrine applies when conditions in the
neighborhood have changed that the intended benefits of the restriction
cannot be obtained in the substantial degree.”18
(3) Acquiescence: “The plaintiff who ignores violations of a promise by some
owners, but then seeks to enforce the same promise against the defendant,
will lose due to acquiescence.”19
(4) Estoppel: “If the plaintiff manifests an intention not to enforce a land use
promise, and the defendant reasonably relies on this conduct to his or her
detriment, the defense of estoppel is available.”20
(5) Laches: “The defense od laches arises when the plaintiff’s unreasonable
delay in enforcing a promise causes substantial prejudice to the
defendant.”21
(6) Relative Hardship: “The plaintiff is entitled to an equitable remedy only if
the balance of the equities tilts in his or her favor.”22
16 Id. at 597.
17 Id. at 605.
18 Id. at 606.
19 Id. at 608.
20 Id. at 609.
21 Id. at 609.
22 Id. at 609.
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