SERVITUDES: RESTRICTIONS ON THE USE OF LAND

by Fredric L. Shenkman, Esq., LL.M.

This article is intended as an introduction to  the law of servitudes.  It is  a starting point for a detailed analysis of the subject; it is useful for those not familiar with servitudes and those refreshing themselves on the subject.

DEFINITION OF A SERVITUDE: A servitude is a legal device that creates a right or an obligation in land; it can also be an interest in land.  Put differently, a servitude is an interest in another’s possessory estate in land, entitling the holder of the servitude to make some use of another’s property.  Borough of Princeton v. Board of Chosen Freeholders of County of Mercer, 333 N.J. Super. 310 (App. Div. 2000), cert. granted, 165 N.J. 676 (2000), affirmed and remanded, 169 N.J. 135 (2000).  Simply, a servitude is the right to use or enjoy someone else’s land or restrict the use of land.

A servitude often “runs with the land,” meaning that the rights and obligations imposed by the servitude pass to successive owners of the lands in question.  A servitude that runs with the land is called a “benefit.” The land benefitting from the servitude is called the “dominant” estate. The land which is burdened by the servitude is called the “servient” estate.

A servitude can take a number of forms including an easement, a profit à prendre, a license, or a covenant. An easement is a non-possessory right to enter and use the land of another.  It obligates the owner of the servient estate not to interfere with the uses contemplated by the easement.            The owner of a servient estate cannot unreasonably interfere with the dominant holder’s rights or change the character of the servitude making the use of the easement more difficult or burdensome.   Tide-Water Pipe Co. v. Blair Holding. 42 N.J. 591 (1964).

Easements can be “appurtenant” or “in gross.”  Appurtenant easements are as described above: there is a dominant estate and a servient estate; the rights or obligations are tied to ownership or occupancy of the land.  An easement in gross does not have a dominant estate that benefits from the easement; the benefit or burden of the easement is not tied to ownership or occupancy of the land.  For example, a utility easement permitting gas lines on the property of another does not generally serve the benefit of a particular piece of land, thus, there is no dominant estate.   Tewksbury Tp. v. Jersey Central Power & Light Co., 159 N.J. Super 44 (App. Div. 1978), affirmed, 79 N.J. 398 (1979). The burden of an easement is always appurtenant; the benefit may be appurtenant or in gross.   See Rosen v. Keeler, 411 N.J. Super. 439 (App. Div. 2010).  Easements in gross are always non-possessory. Village of Ridgewood v. Bolger Foundation, 202 N.J. Super 474 (App. Div. 1985), cert. granted, 102 N.J. 343 (1985), reversed, 104 N.J. 337 (1985).

A profit à prendre (“profit”) is an easement that confers the right to enter and remove timber, minerals, oil, gas, game or other substances from land owned by another.  Profits have recently been in the news due to extraction of gas by “fracking.”

A license is an authority to enter another’s land without possessing any interest in the land; it is usually revocable at will. An example would be allowing a piece of equipment to cross land for use on construction on a different piece of land.

A covenant is a servitude  if the benefit or the burden runs with the land; the converse being that if a covenant doesn’t run with the land it isn’t a servitude.   An “affirmative covenant” requires a covenanter to do something.  Affirmative covenants call for the payment of money, the supply of goods or services, or the performance of some other act, either on or off the land owned or occupied by the covenanter.

A “negative covenant” requires the covenanter to refrain from doing something.  A “restrictive covenant” is a negative covenant that limits permissible uses of land.   An example of a negative covenant that is not a servitude is an owner of a shopping center entering into a lease with a pizza parlor; a negative covenant in the lease prevents the owner from leasing any other location in the shopping center to another pizza parlor. Another example of a negative covenant, one that is a servitude, is a restriction on land from ever being for a particular purpose i.e. a restriction in a deed that prevents the land  from ever being used for industrial purposes.

A more infamous example of a restrictive covenant is  one that prevents the sale of land to a person of color; colloquially, this type of covenant is referred to as a “racial covenant.” Unlike the ordinary restrictive covenant, a racial covenant does not seek to limit the use of property; it seeks to limit who can own  property. Although racial covenants have been unenforceable for decades (Shelly v. Kraemer, 334 U.S. 1 (1948)), they still appear frequently in chains of title.

CREATION OF A SERVITUDE: A servitude is created if the owner of the servient estate enters into an agreement creating a servitude or there is a conveyance intended to create a servitude.  It is important to note the implications of the Statute of Frauds (N.J.S.A. 25:1-1, et seq.) on the creation of servitudes.  N.J.S.A. 25:1-10 defines an “interest in real estate” as including a profit and an easement. An “interest in real estate” is generally not effective unless in writing, N.J.S.A. 25:1-11.

Due to an amendment to the Statute of Frauds, interests in real estate can be created without a writing if: (1) the description of the real estate is sufficient to identify it and the nature of the interest being created; and (2) the existence of the agreement and the identity of the parties can be ascertained by “clear and convincing” evidence.  The standard of proof in most civil cases is “preponderance” of the evidence.  “Clear and convincing” is a higher standard than “preponderance of the evidence” but less than the criminal standard of “beyond a reasonable doubt.”   See N.J.S.A. 25:1-13(b). However, an unwritten agreement concerning real estate is not effective against a bona fide purchaser for value or against lienholders without some type of notice. N.J.S.A. 25:1-14.

There are certain  servitudes that were never required to be in writing pursuant to the Statute of Frauds, N.J.S.A. 25:1-11(d). These include servitudes by: estoppel; implication; necessity;  and prescription.   Mandia v. Applegate, 310 N.J. Super. 435 (App. Div. 1998).

A servitude by estoppel is created if an injustice can only by avoided by preventing the owner of the servient estate from denying the existence of a servitude.  This occurs in two situations: (1) when the servient estate permitted the use of the land under circumstances where it was reasonably foreseeable that the user of the servitude would substantially change position believing that the servitude would not be revoked and that the user did change its position in reliance on that belief; and (2) where the owner of the servient estate represented that the land was burdened by a servitude when it was reasonably foreseeable that the person to whom the representation was made substantially changed position based upon reliance on the representation.

An example of servitude by estoppel involving the first situation would be: the owner of a house asks the abutting farm owner to use a small portion of the farm to accept storm water run-off from the house. There is nothing in writing.  However, the farm owner permits  a piece of the farm to be used for storm water runoff for ten years.  At the end of ten years, the farm owner abruptly builds a wall that prevents the farm  from being used for runoff. The homeowner has no other viable alternative to the farm accepting the run off.  In this situation, a court could impose a servitude by estoppel.

An example of a servitude by estoppel involving the second situation is as follows: a developer of a housing complex indicated in sales brochures that a piece of land in the development would be used in perpetuity as open space.  Set-back restrictions were imposed on homeowners to insure the continued viability of the land as open space.  The open space was never restricted in writing.  Fifteen years later the developer tries to sell the open space for commercial purposes.  This is another situation where the courts could impose a servitude by estoppel to prevent the land from being used other than for open space.

A servitude by implication is created where it may be implied from the circumstances surrounding the conveyance of an interest in land and  the beneficiary of the servitude can be implied by the facts and circumstances of the transaction.  An owner of a farm, subject to a restriction that part of the farm will continue to be operated as a farm,  sells an unrestricted portion of the farm to Jones.  It can be implied that Jones is the beneficiary of a restriction to use the unsold portion of the land as a farm.

A concept related to a servitude by implication is a quasi-easement.  An owner of property cannot have an easement over his or her own land.  Leasehold Estates, Inc. v. Fulbro Holding Co., 47 N.J. Super. 534 (App. Div. 1957), cert. granted 25 N.J. 538 (1958 ). However, when there is joint ownership of two abutting parcels with, as an example, a driveway over one parcel to access the other parcel,  same is a quasi-easement. If the owner  sells the parcel which benefits from the driveway, the quasi-easement is converted to an easement by implication or necessity.  See Mandia v. Applegate, supra.  The parcel served by the driveway being the dominant estate and the parcel  over which the driveway runs being the servient estate.

A servitude by necessity is created by a conveyance that would otherwise deprive the grantee of the land reasonable enjoyment of the land.   An owner of two abutting pieces of property conveys a portion to Jones.  The piece owned by Jones would be inaccessible but for the ability to traverse the parcel not sold, hence, Jones has a servitude other the abutting piece of property for access.

A servitude by prescription is simply a servitude created by means of adverse possession. Adverse possession is the acquisition of title to land or an easement from the legal owner due to possession.  Patton  v.  North  Jersey Dist. Water Supply Com’n , 93 N.J. 180 (1983).

TERMINATION OF SERVITUDES: Servitudes can be terminated by expiration, release, abandonment, merger, estoppel, prescription and changed circumstances, along with other events.

Servitudes can terminate by their own terms: an easement allowing passage for construction equipment ends, by its terms, in one year. A termination of a servitude by release is when the parties agree to terminate contractually. A termination by abandonment is what its name implies, a beneficiary abandons the rights created by a servitude. A termination of a servitude by merger occurs when, for example,  joint ownership of  dominant and servient properties comes into being. A termination by estoppel occurs when the person who has the benefit of the servitude communicates, in words, writing, action, inaction or silence, that he or she intends to terminate the servitude and the burdened party changes position based on same. A termination of a servitude by prescription (N.B. discussion above) occurs when the servitude is lost due to adverse possession. A termination of a servitude because of changed conditions is when there has been a change that makes the imposition of a servitude impossible. An example of this is a piece of land is restricted such that it can only be used for residential purposes; over time,  the abutting property becomes a chemical plant; this renders the use of the land for housing impossible; as such, the servitude no longer exists due to changed circumstances.

INTERPRETATION OF SERVITUDES: A servitude, like a contract, is interpreted to give effect to the intention of the parties as evidenced by the language of the instrument of creation.  If the servitude was not created by a writing, the circumstances surrounding its creation should be examined to ascertain the purpose for which it was created.

In that servitudes are often imprecise,  there are rules of interpretation  if the history surrounding the creation of the servitude is not helpful.  If a servitude by necessity does not have a term, it will be understood to last as long as necessary to satisfy the conditions that caused its creation.  A servitude that is personal lasts only as long as the life of the person benefiting from the servitude.  A conservation servitude is deemed to be perpetual.

If the location and dimensions of the servitude are not defined by a writing, they are determined as follows: (1) the owner of the servient estate has the right, within a reasonable time, to specify a location that is reasonably suited to carry out the purpose of the servitude; (2) the dimensions are those reasonably necessary for the enjoyment of the servitude; (3) the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of the easement, at the servient owner’s expense, to permit normal use and development of the servient estate unless the changes will lessen the utility of the easement, increase the burdens on the owner of the dominant estate, or frustrate  the purpose for which the easement was created.

The unpublished case of Atlantic City Electric v. Evergreen Environmental, Chancery Division-General Equity, Cape May County, Docket No. CPM-C-13-11 dealt with some of these issues.  The Chancery Division was faced with a peculiar set of facts relating to the size and use of an easement. An abandoned railroad line was acquired; the railroad  ran from the Garden State Parkway eastward to the Wildwoods.  To the north and south of the property ran transmission lines serving the Wildwoods.  The prior owner of the railroad line granted an easement so that it could be used to  service, repair and replace  the northerly and southerly transmission lines.  The land between the railroad line and the transmissions lines  was environmentally sensitive.  The new owner of the railroad line wanted to convert it into a wetlands mitigation bank. The easement instrument described the easement area only by lot and block.  The owner of the rail line argued that the easement was intended to allow reasonable access to transmission lines but it was not so expansive as to prevent other uses of the rail line.  The owner of the transmission lines argued that even though a description of the easement area was by lot and block which, admittedly, is not precise enough to describe the property by metes and bounds, it was sufficient for the court to determine that the entire property, regardless of its precise location and boundaries, was encumbered by the easement.  The trial court, on cross-motions for summary judgment, agreed that the easement burdened the entire rail line due to the easement’s description by lot and block.

CONCLUSION: Servitudes, by their nature, encumber the title and use of land. Any acquisition or financing of land requires a careful analysis of the title to land so that the purposes for which the land was acquired or financed are not frustrated.