Servitudes

Easement by necessity available if the difficulty or expense of using a legally available route renders the land unfit for its reasonably anticipated use

The Pennsylvania Supreme Court granted an owner an easement by necessity even though the land contained a small strip connecting the land to a public way. Bartkowski v. Ramondo, 219 A.3d 1083 (Pa. 2019) (applying the Private Roads Act, 36 Pa. Stat. §§2731-2891. It did so on the ground that access need not be strictly necessary to get to the land for an easement...

Owner of power line easement may install fibre optic cables without exceeding the scope of the easement

In a case applying what appears to be the majority rule, the Seventh Circuit held that an easement for power lines included the right to install lines for other purposes -- in this case fibre optic cables. West v. Louisville Gas & Electric Co., 951 F.3d 827 (7th Cir. 2020). The Texas Supreme Court rejected this...

Owners cannot create easements in their own parcels

In Fitzpatrick v. Kent, 458 P.3d 943 (Idaho 2020), an owner of of two adjacent lots recorded a grant of an appurtenant easement over the servient estate for maintenance of a pond and...

California limits enforceability of private transfer fees.

California passed a statute prohibited private transfer fees unless used exclusively to support the encumbered property or cultural, education, charitable, recreational, environmental, conservation, or similar activities. Cal. Civ. Code §1098.6 (2018 Cal. Stat. ch. 306).

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Easement by necessity extinguished by marketable title act

Vermont's marketable title act, Vt. Stat. tit. 27, §604(a), allows preservation of claims established more than forty years ago if they are re-recorded but does not require easements to be re-recorded if they are visible or evidenced by a "recorded agreement." In Gray v. Treder, 2018 VT 137, 2018 Vt. LEXIS 237 (Vt. 2018), the...

No right to pave prescriptive easement in rural area

In a case that rests on neighborhood norms and prescriptive easement doctrine, the Massachusetts Land Court has held that while an easement owner can maintain an easement, the easement owner here could not pave the road even though the unpaved road had holes that made it difficult to drive and had damaged the easement owner's car. Unpaved roads were common to the area and desired by the owner of the servient estate...

Prescriptive easement to discharge water onto neighboring land

The Massachusetts Land Court has held that an owner can acquire the right to collect and discharge surface water onto neighboring land by prescription if this continues without permission by the servient estate owner and the other requirements for prescriptive easements are met. JPM Dev., LLC v. Nemetz, 2018 WL 4892726 (Mass. Land Ct. 2018). However, in a companion case, it emphasized that the amount of discharge is set by the historic use throughout the prescription period and any increase in that use is a trepass. Putney v. O'Brien, 2018 WL 6183338 (Mass. Land Ct. 2018).

California prohibits transfer fee covenants

California has joined the increasing number of states that have passed statutes prohibiting transfer fee covenants that require payments to the original seller or covenantor each time the property is sold. Cal. Civ. Code §1098.6 (2018 Cal. Stats. ch. 306).

Short term rental use held not to violate covenant prohibiting "commercial activity"

The courts continue to split on this question with the majority holding use of property for short-term rental (such as vacation rental or Airbnb use) is a residential rather than a commercial use. The Wisconsin Supreme Court has joined the courts that have found short-term home rentals to be consistent with a covenant prohibiting "commercial activity."...

Restrictive covenant held not to be "property" compensable under the takings clause

A town bought a parcel of land subject to a restrictive covenant in order to build a municipal water storage tank contrary to a restrictive covenant prohibiting such construction. The town sued for a declaratory judgment that it could violate the covenant without paying just compensation under the fourteenth amendment's takings clause. Relying on an earlier case decided by the Colorado Supreme Court, Smith v. Clifton...

Joseph William Singer

Bussey Professor of Law, Harvard Law School

Servitudes

Easement by necessity available if the difficulty or expense of using a legally available route renders the land unfit for its reasonably anticipated use

Owner of power line easement may install fibre optic cables without exceeding the scope of the easement

Owners cannot create easements in their own parcels

California limits enforceability of private transfer fees.

Easement by necessity extinguished by marketable title act

No right to pave prescriptive easement in rural area

Prescriptive easement to discharge water onto neighboring land

California prohibits transfer fee covenants

Short term rental use held not to violate covenant prohibiting "commercial activity"

Restrictive covenant held not to be "property" compensable under the takings clause

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Servitudes

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