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Private Land Use Arrangements: Easements, Real Covenants and Equitable Servitudes - Third Edition - Hardcover Edition
Private Land Use Arrangements: Easements, Real Covenants and Equitable Servitudes - Third Edition - PDF eBook
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§5.01 Enforcement against Purchaser of Servient Tenement
§5.02 Notice
§5.03 Succession to Appurtenant Easements
§5.04 Transfer of the Dominant Estate
§5.05 Subdivision of the Dominant Estate
§5.06 Severance of Appurtenant Easements
§5.07 Transfer of Easements in Gross
§5.08 Traditional Rule Against Transferability
§5.09 Commercial versus Noncommercial Easements
§5.10 Intention
§5.11 Divisibility
§5.12 Drafting Comments
§5.01 Enforcement against Purchaser of Servient Tenement
(a) Movement by Operation of Law
The courts typically hold that the purchaser of property burdened by an
easement takes subject to that interest.1 Most cases do require, however, that
the purchaser have notice of the easement in order to be bound.2 The rule is
applied in situations of express easements,3 easements by necessity,4
easements implied from prior use,5 and prescriptive rights.6
An easement is effective against the purchaser as a function of the law of
easements. Easements are conceptualized as an in rem interest, attached to the
burdened land itself.7 One taking the servient tract takes it along with the
burden of the easement, just as a purchaser accepts the physical limitations of
land, such as poor soil, when he or she receives title.8 The burden of the
easement passes automatically to the purchaser of the servient in this way “by
operation of law.”9 There is no need for an express passing of the servitude.10
Courts have also explained the rule on the basis that the bundles of
ownership rights created when the easement was established must be
respected by both the grantor and grantee of the servient parcel. Thus, the
grantor, owning a limited estate, can convey only the title that he or she
possesses11 and cannot convey more than he or she owns.12 As a corollary,
Gerald Korngold Gerald Korngold is Professor of Law at New York Law School in New York City and a Visiting Fellow at the Lincoln Institute of Land Policy in Cambridge, Massachusetts. He is the former Dean of Case Western Reserve University School of Law.
Professor Korngold is an elected member of the American Law Institute (ALI) and the American College of Real Estate Lawyers. He served as an Advisor to the ALI's Restatement of Property (Third) - Servitudes. Professor Korngold is also the author of Cases and Text on Property (with French, Vander Velde, Casner & Leach); Real Estate Transactions: Cases and Materials on Land Transfer, Development and Finance (with P. Goldstein) and Property Stories (co-edited with A. Morriss).