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Servitude: rules governing contractual restrictions on land use…
Servitude: rules governing contractual restrictions on land use
Negative Servitude OR Covenants
Affirmative Servitude
Most common form is the right of way: the right to use someones land ingress and egress
are rights to use another's land for a limited purpose
EASEMENTS: nonpossessory rights to use another's land that run with the land
EASEMENTS should be distinguished from leases and licenses; LEASES ARE POSSESSORY RIGHTS TO USE A DEFINED SPACE FOR ALL USES NOT EXPLICITLY OR IMPLICITLY prohibited in the lease
Licenses : are limited rights to enter land that do not run with the land and are usually revocable at will by the grantor
Negative Easements
Restricts with respects to what a owner can do with their own land
Policy Concerns : Evaluating servitude law by balancing these public policy concerns
(1)
Do FORMAL requirements for creation of servitude help future owners have notice of the servitude's existence? (2) Do RULES OF INTERPRETATION of ambiguous servitude further the presumed intent of the parties, prevent unfair surprise, and ensure that the land serves public interest (3) Do SUBSTANTIVE restrictions on servitude ensure that they increase land value and do not undermine other important policy goals (4) Do rules for TERMINATION end servitude that no longer serve party intent or other interest or that unduly burden the land
Common Vocabulary for Positive and Negative Servitude
land subject to the burden of a servitude is called
BURDEN OR SERVIENT ESTATE
If the right to benefit from a servitude automatically passes to the owners of a particular parcel of land, that land is called the
benefited or dominant estate
Servitude may also be
in gross
meaning that the benefit of the servitude is held by a particular individual or entity rather than running with a parcel of land EX.utility lines running across land
If there is a benefited estate, the servitude is known as an
appurtenant
easement
Positive and Negative Servitude Respond to common problems
Servitude allocates use and governance rights among owners and non owners
Such as
(1) coordination of land use (2) secure expectations
(3) identity interests in land (4) encourage investment (5) encourage alienation of land
Negative effects of Servitude can be (1) useless outdated restrictions (2) undermine policy goals (3) unfairly surprise and undermine expectations of new purchasers of land