Real Property Essay To answer the question of whether Teri can stop Kevin from using his colonial as an art gallery, we need to look to the law of equitable servitudes. This is because Teri seeks an injunction to stop Kevin from using the colonial as a business. Like real covenants, equitable servitudes restrict the right to use land. If there is an equitable servitude in place, Teri will be able to restrict Kevin's right to use the land. However, there are several elements needed for an equitable servitude to be in existence. For an equitable servitude to be enforced at equity, there must be (1) an intent for the restriction to be enforceable by successors-in-interest for the benefit to run and enforceable against successors-in-interest for the burden to run; (2) he person against whom the servitude is to be enforced must have notice (whether actual, record, or inquiry notice)

of the servitude; and (3) The servitude must touch and concern the land. There is NO privity requirement for equitable servitudes. In apply the facts to the law, we see that the situation satisfies step one in that Paul made a promise to Teri that the colonial would not be used for any

other purpose other than a family dwelling and that the contract would be binding to Phil's heirs and successors. Step two is also satisfied on two accounts. First, the contract is properly recorded with the Register of Deeds, and second Teri tells Kevin outright that the contract between her

and Phil totally prohibited Kevin from using the colonial as anything other than a family dwelling. Lastly, touch and concern is satisfied in that the equitable servitude certainly affects both the promisee and promisor as owners of the land, it completely dictates how the land is

used. Given that all the steps are satisfied completely, it seems highly likely that there is an equitable servitude in place and Teri would be able to enforce an injunction to stop Kevin. To answer whether Kevin and his patrons have future use of the driveway, we now need to look to the law of easements. An easement is the right held by one person to make specific, limited use of land owned by another. The land that is subject to the easement is the servient estate, whereas the land that benefits from an easement on a servient estate is the dominant estate. Easements can be created in several different ways, and it is of no consequence that there was never an actual grant of right for Phil to use the driveway that passed over Teri's land. More importantly is the fact that Teri allowed her brother to use the driveway during his ownership of the colonial. Given this fact, there is possibly an easement created by implication for Kevin. An easement by implication exists if an earlier owner previously used an easement on the servient estate. In these situations, the court may find the parties intended the easement to continue if the prior use was continuous, apparent (open and obvious), and reasonably necessary to the dominant land's use and enjoyment. Because Phil was seemingly an open and obvious user of

the driveway (Teri willingly allowed him to use it), and the use of the driveway is reasonably necessary for the use and enjoyment of the land (can't get to State Street without it), it seems

likely that Kevin will be able to establish that there is an easement created by implication and he and his patrons will be able to use the driveway if he is successful in creating his business.

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Question 1: (1). Teri can stop Kevin from using his colonial as an art gallery because of the covenant entered

into prevwously between Teri and Phil. A covenant is a mechanism used in deeds to restrict the right to use the land in some way. For a covenant to run with the land, the elements to be met are that the convent must be in writing, with intent for it to run, covenant must touch and concern the land, and there must be notice to a subsequent purchaser. Here, the covenant is m writing by way of a contract

between Teri and Phil. The intent for the covenant to run is explicitly mentioned in the contract as it is binding on Phil's heirs and successors. The covenant touches and concerns the land because the effect

of the covenant is not limited to the individuals (Terri or Phil) but pertains to the land and mandates that the land will not be used for anything but a family dwelling. Finally, Kevin has actual and constructive knowledge because of the fact that the convent has been recorded with the Register of Deeds (constructive knowledge) and Teri explicitly told Kevin of the covenant. Therefore, since the elements for a covenant to run with the land are satisfied, Teri can stop Kevin from using his colonial as an art gallery.

(2). Kevin and his potential patrons have the right to use the driveway as an appurtenant easement by implication. An easement is the right held by one person to make specific, limited use of land owned by another. The land that is burdened by the easement is called the servient estate; while the land that benefits from the easement is called the dominate estate. An appurtenant easement runs with the land and Is presumed to do so unless there are clear facts to the contrary. An easement by implication is created when the easement was previously used on the servient estate by an earlier owner, and from that Courts will find that the easement continues if the prior use was continuous, apparent, and reasonably necessary to the dominant land's use and enjoyment. Here, Kevm's land would be considered the dominant estate; while Teri's land would be considered the servient estate.

The easement is an easement by implication because the facts show that Phil had used the easement sine purchasing the land up untd he sold the land the Kevin, which satisfies the elements of continues and apparent (open and obvious use). Moreover, the easement is necessary to the dominant land

(Kevin's land) because Kevin and his patrons must use the land to get to Main Street and it doesn't sound like there are other options to reach mare roads without the driveway. Therefore, Kevin and his patrons will be able to use the driveway as an easement by imphcation. However, Teri may attempt to argue that her verbal cancellation of the easement to Kevin was sufficient to terminate the easement. Easements can be terminated by the doctrines of release, merger, severance, abandonment, destruction and condemnation, prescrwption, estoppel, or sale to a bona fide purchaser. Here, none these terminations doctrines are satisfied. The best argument for Teri is release

(a writing that expressly releases the easement rights), however her attempted cancellation was verbal and not in writing, which would not satisfy the terminatlon. Therefore, the easement was not terminated and Kevin has access to the use of the easement.