4.2 Easements, Real Covenants, Recording Acts & Mortgages

🎯 Essential Doctrinal Takeaways

• An easement by necessity arises by operation of law when a landlocked parcel is severed from common ownership.
• Enforcing a covenant at law for money damages requires horizontal and vertical privity; equitable servitudes for injunctions require NO privity.
• In a Notice recording jurisdiction, a subsequent bona fide purchaser without notice prevails immediately, without needing to record first.
• Under Restatement of Mortgages § 7.2, a purchase money mortgage (PMM) has absolute super-priority over prior recorded judgment liens.

Easements are nonpossessory rights to use another's land. An easement appurtenant benefits a dominant tenement and runs with the land; an easement in gross benefits a person or entity. Easements by necessity arise by operation of law when a unified parcel is severed, leaving one parcel strictly landlocked with no access to a public road.

Restrictions on land use operate as real covenants or equitable servitudes. For the burden of a real covenant to run at law for money damages, common law requires writing, intent, touch and concern, notice, horizontal privity between the original parties, and vertical privity. For an equitable servitude enforced by injunction (Tulk v. Moxhay), horizontal privity is eliminated; only writing, intent, touch and concern, and notice are required.

Recording acts govern priority between competing grantees. In a pure Notice jurisdiction, a subsequent bona fide purchaser for value who takes without notice prevails over a prior unrecorded conveyance immediately upon acquisition. In a Race-Notice jurisdiction, the subsequent BFP must both take without notice and record first. A purchase money mortgage (PMM) enjoys super-priority over prior judgment liens.

⚠️ NextGen Bar Examination Traps & Pitfalls

• Requiring horizontal privity to enforce an equitable servitude in equity for an injunction.
• Assuming a subsequent BFP must record first to prevail in a pure Notice state.
• Allowing a prior docketed money judgment against a debtor to take priority over a purchase money mortgage lender.