Land Use Regulations: Use, Height, and Bulk
Enforcing a Running Covenant at Law
Implying Reciprocal Covenants by the Common Owner

Property Law: Avoiding the Statute of Frauds

The statute of frauds applies to easements because they’re interests in land. As with other property interests, most state statutes of frauds don’t apply to short-term interests that last for less than a year.

Otherwise, the statute of frauds requires written evidence of the creation of an easement, signed by the servient tenant — although today a deed signed by the grantor and reserving an easement for himself may satisfy the statute of frauds. The statute of frauds also requires that the writing define the servient estate or the location of the easement.

If there’s no such writing, the statute of frauds makes such an agreement unenforceable. However, there are two exceptions to this general rule, when the parties’ express agreement creating an easement will be enforced despite the absence of the required written evidence.

Enforcing an easement due to estoppel

If the servient tenant agrees to give the dominant tenant an easement, but their agreement doesn’t comply with the statute of frauds, their agreement creates a license. The statute of frauds won’t allow the easement to be enforced, but the grantor nevertheless did agree to allow the grantee to use her land somehow. So the grantee has a license, which by definition the licensor can revoke at any time.

However, the licensor may be estopped from revoking the license in certain circumstances. If the licensor can’t revoke the license, then the license is essentially an easement. Sometimes courts call this an equitable easement or, confusingly, an irrevocable license.

Estoppel allows the dominant tenant to enforce an express easement agreement, despite noncompliance with the statute of frauds, when the following things are true:

  • The parties intended to create an easement. If the parties expressly agreed that the grant was a license, revocable at will, then the estoppel doctrine can’t transform the license into an easement.

  • The dominant tenant reasonably relied on the grant of an easement to his detriment. In other words, the dominant tenant somehow changed his position (by investing in the land or otherwise) in a way that he’ll suffer loss if the easement agreement isn’t enforced.

    Some courts say that the reliance must be expenditures on the servient land that are required in order to make use of the easement, such as improving a driveway over the servient land. Other courts say that any substantial reliance can support an estoppel claim.

  • The servient tenant reasonably should’ve foreseen that the dominant tenant would rely as he did. Even if the parties didn’t expressly say that the grant was irrevocable, if the servient tenant should’ve known that the dominant tenant was expecting an irrevocable interest and was going to invest in reliance on it, once the dominant tenant does invest, the servient tenant is estopped from denying the existence of the easement.

Because the easement becomes enforceable to avoid harm resulting from the dominant tenant’s reliance, some authorities say that the easement by estoppel lasts only until the dominant tenant gets enough value out of the easement to justify his expenditures. After he’s got as much value from the easement as he put into the property in reliance, he no longer has an enforceable easement.

Enforcing an easement due to part performance

Part performance allows enforcement of an unwritten agreement on the theory that the parties have performed their agreement enough that a court can be confident they really did enter into an easement agreement, despite the absence of a writing.

The requirements of part performance essentially require alternative evidence that the parties did agree to create an easement. Here are the three categories of alternative evidence that may justify enforcement of the easement agreement, despite noncompliance with the statute of frauds:

  • Use of the easement: If the dominant tenant has actually been using the easement pursuant to the alleged easement agreement for some time without objection by the servient tenant, that tends to prove that the parties really did enter into an easement agreement.

  • Permanent, substantial improvements: If the dominant tenant makes improvements to the servient land, that’s persuasive evidence that the parties entered into an easement agreement. People don’t normally make improvements to other people’s land, but easement holders often do so in order to make better use their easements.

  • Payment of consideration: If the dominant tenant paid consideration to the servient tenant, that tends to prove that the parties really did have an easement agreement. However, there may be other explanations for apparent payment of consideration, so some courts have said that payment of consideration alone isn’t enough to excuse noncompliance with the statute of frauds; it must be combined with evidence of use or improvements.

The dominant tenant need not prove all three of these things to establish sufficient part performance to excuse noncompliance with the statute of frauds. Some courts have suggested that the payment of consideration alone can’t be sufficient part performance to excuse noncompliance with the statute of frauds.

In evaluating part performance claims, consider whether the evidence in each of these categories persuasively indicates that the parties must have had an easement agreement or whether the evidence is consistent with an alternative explanation offered by the servient tenant. If the evidence isn’t sufficiently convincing, the part performance exception shouldn’t apply.

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