How do servitudes and easements get put into place? How can they be protected? Why are they important?

Answer 1

Equitable servitudes and easements are different.

Easements are interests in real property that run with the land, and are binding on successors in interest. An easement allows use of the land, referred to as the servient estate. Easements may be appurtenant, being for the benefit of an adjacent dominant estate, or they may be in gross, being for the benefit of an individual.

Easements may be created by express conveyance, like any other transfer of interest in land. Easements may also be created by necessity or implication, where the dominant estate cannot be reached without crossing over the servient estate. For both necessity and implication, the original parcel must have been split into the dominant and servient estates, which means these easements only exist appurtenant. Easements may also be created by prescription, through continue open and notorious use, similar to adverse possession. These easements may be appurtenant or in gross.


Real covenants and equitable servitudes are limitations or requirements imposed on a parcel of land. Like easements, they are intended to run with the land. However, unlike easements that affect only a servient estate. Covenants (both real covenants and equitable servitudes) must also touch and concern the servient estate, meaning that they affect the use and/or value of the property.

The are two main differences between a real covenant and an equitable servitude. First, the servitude allows only equitable relief (as in injunctions), like the name suggests. Real covenants, in contrast, allow only for relief at law, most often damages. Also, for the burden to run in a real covenant, there must be horizontal and vertical privity. Vertical privity means the subsequent estate holder of the servient estate obtained all of the interest held by the previous estate holder. Transferring only a portion of the parcel is generally not sufficient. Horizontal privity means there was privity of estate or contract between the original landowner of the servient estate and the original covenant holder. This could occur in a landlord tenant relationship, or if the covenant was created when the parcel was split. There must also be notice on the part of the servient landowner, though this may be constructive notice if the covenant was recorded or inquiry notice if there is reason to inquire. Covenants and servitudes are almost exclusively created by express conveyance, usually during deed transfer of the servient estate.

To protect covenants (real or equitable servitudes), it is necessary to enforce them in the same manner as contractual provisions. To protect easements, it is necessary to treat them as interests in land, and not allow them to be lost by prescription or abandonment.

Both easements and covenants (real or equitable servitudes) may also be lost if the servient (burdened) estate is conveyed to a bona fide purchaser (BFP) for value without notice. Some states also require the BFP to record the conveyance to be protected. To ensure that a BFP cannot ignore the covenant or servitude, the dominant (benefited) estate holder or the holder of an easement in gross should record their interest, thus putting any later purchaser on constructive notice, and preventing any claim of being a BFP without notice.

Covenants (real or equitable) are important because they are contractual obligations that touch and concern the land, thus affecting its use or value. Easements are important because they are durable interests in real property, which affect the value of the servient estate. Easements appurtenant also affect the value of the dominant estate, because they would be conveyed (sold or transferred) with the dominante estate. An attempted transfer of an easement appurtenant independent of the dominant estate will either be void, or will cause the easement to be extingusihed, depending on the jurisdiction.

This is general legal theory. The actual laws vary by state. Check your local listings.

Answer 2

Good luck Coragryph. Remember, the Cal Bar almost always weaves ethical considerations into most essay questions. Also, if you don't know the answer to an essay question, give a lawyerly and organized essay in response anyway.