Easements are a long-standing form of land-use right. The term “easement” basically means “the right to use the land of another.”^[1] An easement is a property interest in land held by someone other than the fee simple owner. Therefore, as Indiana cases have noted, “[a] landowner cannot possess an easement in his own property.”^[2] Easements may be classified in various ways.

[1] Harlan Bakeries, Inc. v. Muncy, 835 N.E.2d 1018, 1033 (Ind. App. 2005)

[2] Enderle v. Sharman, 422 N.E.2d 686, 693 (Ind. App. 1st Dist. 1981).

First, you should learn the terms “dominant tenement” and “servient tenements.” A “dominant tenement” is a piece of land which is benefited by an easement. A “servient tenement” is the piece of land which has the easement on it; it is burdened by the easement. The relationship gives rise to certain responsibilities of the owner of the parcels. The owner of the servient tenement cannot “materially impair or unreasonably interfere with the use of the easement.”^[1] On the other hand, the owner of the dominant tenement “cannot subject the servient estate to extra burdens.”^[2]

[1] Brown v. Heidersbach, 360 N.E.2d 614, 618 (Ind. App. 3d Dist. 1977).

[2] Id. at 618.

Second, an easement may either be appurtenant or in gross. The difference between these two is:

An easement is appurtenant if it passes with the dominant tenement by conveyance or inheritance. An easement is in gross if it is a mere personal right which cannot be granted to another person or transmitted by descent.^[1]

Or put a slightly different way:

(1) an easement is appurtenant if it passes (by conveyance or inheritance) with the dominant tenement; (2) an easement is in gross if it is personal to the owner of the dominant tenement.^[2]

So, in other words, some easements will be in existence no matter who the owner of the dominant tenement is, while others will vanish after a certain time, such as when the dominant tenement is sold.

[1] Larry Mayes Sales, Inc. v. HSI, LLC, 744 N.E.2d 970, 973 (Ind. App. 2001).

[2] Brown at 618.

Express easements are usually created by one of two methods. The first is via reference in a deed.^[1] The second is via creation in a recorded subdivision plat, which then binds all purchasers in the subdivision, even if the grant is not referenced in an individual deed.^[2] One form of express easement which is important in modern land usage is called an “easement in gross of a commercial character,” which is defined in the Indiana Code. This easement concerns any right for a utility company (such as providing or regulating natural gas, petroleum, cable television, telephone, water, or electricity) to use land. Most of the time, these easements may be sold or otherwise transferred unless the grant provides otherwise.^[3]

Implied easements come about in two ways. First, when a single landowner transfers one parcel of land that was once a part of a greater whole, where that landowner once used that parcel in a manner as to imply an easement, even if there wasn’t actually one (remember – no easement can exist in favor of a person on their own land). And so, Indiana law has held that such an easement, called implied by prior use, can arise when:

(1) [T]here was common ownership at the time the estate was severed; (2) the common owner's use of part of his land to benefit another part was apparent and continuous; (3) the land was transferred; and (4) at severance it was necessary to continue the preexisting use for the benefit of the dominant estate.^[4]

However, there are some limitations on this use, as the same Court noted:

[A] mere temporary or provisional arrangement the owner might have adopted for more convenient enjoyment of the estate does not demonstrate the degree of necessity or permanency that would authorize the engrafting upon a deed, by construction, of a right to the enjoyment of something not within the lines described. To justify such construction it must appear from the disposition, arrangement and use of the several parts that it was the owner's purpose in adopting the existing arrangement to create a permanent and common use. It must be reasonably inferable from the existing disposition and use that it was intended to be continuous, notwithstanding the severance of ownership.^[5]

Therefore, the use of the parcel transferred by the former owner must have been consistent and of a permanent character.^[6] Another type of implied easement is that implied by necessity. Like that created by prior use, the parcel needing the easement must have been in common ownership previously:

[I]f a landowner conveys a piece of real estate that is completely surrounded by the landowner's remaining property, then we imply that the conveyance includes an easement across the landowner's remaining property. In addition, if a conveyed piece of property has no outlet to a public road except by going across the grantor's remaining land or across the land of a stranger, the law implies a way of necessity over the grantor's remaining land, because an easement of “necessity cannot arise against the lands of a stranger.^[7]

A third and final type of implied easement is an easement of prescription. Essentially, an easement of prescription arises through long use of a particular piece of land by another individual. The requirements for obtaining such an easement are strict. One requirement is set forth in the Indiana Code, namely that “[t]he right-of-way, air, light, or other easement from, in, upon, or over land owned by a person may not be acquired by another person by adverse use unless the use is uninterrupted for at least twenty (20) years.^[8] Indiana cases are more explicit, stating that:

In order to establish the existence of a prescriptive easement across the land of another, the evidence must show an actual, hostile, open, notorious, continuous, uninterrupted, and adverse use for twenty (20) years under claim of right, or such continuous adverse use with the knowledge and acquiescence of the owner.^[9]

The party claiming an easement by prescription has a heavy burden of proof. Indiana cases have stated that:

A party claiming the existence of a prescriptive easement must provide evidence showing an actual, hostile, open, notorious, continuous, uninterrupted adverse use for twenty years under a claim of right. Furthermore, each element must be established as a necessary, independent, ultimate fact, the burden of showing which is on the party asserting the prescriptive title, and the failure to find any one such element [is] fatal, for such failure to find is construed as a finding against it…..the claimant in such circumstances must establish clear and convincing proof of (1) control, (2) intent, (3) notice, and (4) duration.^[10]

Essentially, when all these elements are proven, an easement will be created (implied) by law.^[11]

[1] See Wischmeyer v. Finch, 107 N.E.2d 661, 664 (Ind. 1952).

[2] Id. at 664.

[3] I.C. § 32-23-2-1, et. seq.

[4] Hysell v. Kimmel, 834 N.E.2d 1111, 1114-1115 (Ind. App. 2005).

[5] Hysell at 1114 (internal citations omitted).

[6] It would be far better, as I have noted, to deal with this in a deed and purchase agreement. For instance, putting this in a deed would serve a farmer much better than to wake up one morning and realize that, having sold off part of the back forty to a person who wanted acreage to a house, the home is being built in the middle of the only ingress to that parcel of land, and having to run to court to ask for a new ingress across the land sold weeks before.

[7] William C. Haak Trust v. Wilusz, 949 N.E.2d 833, 836 (Ind. App. 2011).

[8] Ind. Code § 32-23-1-1

[9] Searcy v. LaGrotte, 372 N.E.2d 755, 757 (Ind. App. 2d Dist. 1978).

[10] Wilfong v. Cessna Corp., 838 N.E.2d 403, 405-406 (Ind. 2005) (internal citations omitted).

[11] Prescriptive easements will allow for “tacking,” which is essentially means that continuity of use for the requisite twenty-year period may be established by adding on the time period which previous landowners used the same easement. Downing v. Owens, 809 N.E.2d 444, 450 (Ind. App. 2004).

While often similar in action to an easement, a “license” is a different matter. Please note that this idea is related to a license to do an activity by the state, such as a fishing license, hunting license, or license to cut hair. Black’s Law Dictionary defines a license as: “An authority to do a particular act or series of acts upon another’s land without possessing any estate therein.”[1] The BLD goes on to differentiate it from an easement, in noting that:

It is distinguished from an “easement,” which implies an interest in the land to be affected and a “lease” or a right to take in the profits of land.^[2]

This distinction is carried over into Indiana law. For instance, one case discussed the difference between an easement and a license as such:

A license in real property is a personal, revocable, and unassignable privilege to do one or more acts on the land of another without possessing an interest therein…..A right, given in perpetuity, to do an act on the land of another is an easement, but the same must be in writing.^[3]

To confuse the issue a bit, in some cases, a license, if it has certain characteristics, will be treated as an easement. Generally, licenses are revocable at the will of the grantor. In some cases, however, they may also be more permanent. For instance, an older Indiana case stated:

A license does not convey any title to the land; and where a mere license is relied on, it must appear that there was a consideration paid for it, or it will be deemed revocable at the will of the person granting it…..Where a consideration is paid, or value has been parted with, on the faith that the license is perpetual, then it cannot be revoked...^[4]

This, then, defines another characteristic of a license. Usually, a license does not give any chance for use of it to turn into ownership.

Unlike express easements, a license need not be in writing. For instance, a license may even come into existence when an owner fails to object when the owner should have objected. So, for instance:

An implied license partakes of the nature of an estoppel, and may be found to exist from the inducements and representations of the owner, or from silence, where an owner sees and knows the extent of an act or acts done upon his property, and fails to object thereto.^[5]

Or, to put it in slightly less archaic language, if one person often goes on the land of another to perform some action (e.g., fishing or cutting timber) and the other does not object (for instance, escorting the trespasser bodily off the property), but allows the individual to continue, the owner may have granted the trespasser a license. Now, that license could be revoked by the owner at will, but the owner will not be able to object to previous actions taken under the implied license.

As we discussed above, a license may be revoked expressly (directly, in writing or verbally), if there has been no consideration paid for it. A license may also terminate in other ways. If the license is not executed, the death of the licensee causes the revocation of the license.^[6] In addition, a license may terminate after a certain period of time for nonuse of the license, also called “abandonment.”^[7] Finally, in the case of an irrevocable license, the landowner could essentially “buy out” the license-holder, ending the license.^[8]

[1] Id.

[2] Id.

[3] Selvia v. Reitmeyer, 295 N.E.2d 869, 873 (Ind. App. 3d Dist. 1973).

[4] Parish v. Caspar, 10 N.E. 109, 110 (Ind. 1887).

[5] Stevens v. Howerton, 96 N.E. 968, 970 (Ind. App. 1st Div. 1911).

[6] Spacy v. Evans, 52 N.E. 605, 605 (Ind. 1899).

[7] Lake Erie & W.R. Co. v. Michener, 20 N.E. 254, 256 (Ind. 1889)

[8] Indus. Disposal Corp. v. E. Chi., Dep't of Water Works, 407 N.E.2d 1203, 1205 (Ind. Ct. App. 1980)

The general term “covenant” often evokes the form of contract. The term “covenant” in American law reflects that idea, as it is:

An agreement, convention, or promise of two or more parties, by deed in writing, signed, sealed, and delivered, by which either of the parties pledges himself to the other that something is either done or shall be done, or stipulates for the truth of certain facts.^[1]

As you can see from this excerpt, covenants need not be solely of a type that prevent actions; rather they may also enforce actions, etc. In Indiana, courts have defined three basic types of covenant:

The nature of the burden determines whether the covenant is negative, affirmative, or restrictive. Negative covenants call for the covenantor to refrain from doing some act. If the required performance limits the uses that can be made by the owner or occupier of land, the covenant is usually called a restrictive covenant. We have held that restrictive covenants are, in essence, a form of express contract between a grantor and a grantee in which the latter agrees to refrain from using his property in a particular manner. In contrast, affirmative covenants call for the covenantor to do some act, such as paying money, supplying goods or services, or performing some other act, either on or off the land owned by the covenantor. We have defined affirmative covenants as a form of express contract between a grantor and a grantee which imposes an affirmative burden on the latter.^[2]

In our studies, we are going to specifically deal with the type of restriction on real property called a “restrictive covenant.” In Indiana law, a “restrictive covenant” has been defined in various ways; one such is set forth in the following case:

We note that a covenant is generally an agreement duly made “to do,” or “not to do,” a particular act. The term “covenant” generally describes promises relating to real property that are created in conveyances or other agreements, and a covenant may be express or implied. A restrictive covenant is an agreement between a grantor and a grantee in which the latter agrees to refrain from using his property in a particular manner.^[3]

What makes a restrictive covenant a form of private restriction on land use is the fact that it is a contract made as part of a transfer of land from a grantor to a grantee. So, for instance, in a development of some sort (such as a subdivision), a developer may own every lot, and place restrictions on those lots in the form of covenants, which then bind the purchaser of a lot in the subdivision. “[C]ovenants control many aspects of land, including what may be built on the land (fence or above ground pool), how the land may be used (private or commercial), and alienability of the land.”^[4] It is very difficult for a purchaser of property in a development or condominium to argue that any given covenant does not apply to the property purchased –

Restrictions found in a declaration (like those found in a master deed) are clothed with a very strong presumption of validity which arises from the fact that each individual unit owner purchases his unit knowing of and accepting the restrictions to be imposed.”^[5]

One of the few times that such restrictions are overturned is when the covenant is “wholly arbitrary in…application, in violation of public policy, or…. abrogate[s] some fundamental constitutional right.”^[6] The latter is often found in contexts where covenants, having come into being before the modern civil rights era, run afoul of the US and Indiana constitutions. For instance, in a case from Elkhart:

Between 1939 and 1941, four of the lots were sold to purchasers without restrictions. However, in 1942, Lot No. 11 was sold with the following restrictions attached: … (e) No persons of any race other than the white race shall use or occupy any building or any lot, except that this covenant shall not prevent occupancy by domestic servants of a different race domiciled with an owner or tenant….In its findings, the trial court found the racial covenants to be unenforceable and redacted them from the deeds…. Restrictive covenants which restrict use of land based on race are unconstitutional. Shelley v. Kraemer (1948), 334 U.S. 1, 23, 68 S.Ct. 836, 847, 92 L.Ed. 1161, 1186. ^[[7]] Thus, undisputably, the racial restrictions contained in the deeds are invalid.^[8]

This restrictive covenant was deemed unenforceable due to constitutional protections for civil rights. Similarly, covenants may not usually prohibit other constitutional rights, and some exceptions and limitations upon restrictive covenants are created by statute. For instance, Indiana Code § 32-21-13-4 states:

Except as provided in section 5 of this chapter, a homeowners association may not adopt or enforce a rule that prohibits a member of the homeowners association from displaying a sign on the member's property during the period

(1) beginning thirty (30) days before; and

(2) ending five (5) days after;

the date of the election to which the sign relates.

In analyzing covenants to determine if they run afoul of constitutional or statutory prohibits, one must take care to determine exactly what is prohibited by a covenant. So, for instance, in holding that a covenant against property in a subdivision being used as group homes for the mentally ill was constitutional, the Indiana Court of Appeals stated:

It is readily apparent the covenants here discussed do not violate the equal protection clause. These covenants neither directly nor by necessary implication prohibit occupancy of the lots in the subdivision by developmentally disabled or mentally ill persons for residential purposes in structures meeting the requirements of the subdivision's building restrictions. Only business uses are prohibited.^[9]

Indiana has explicitly adopted both “disparate treatment” and “disparate impact” tests in regard to whether any particular covenant runs afoul of constitutional law. In brief, the difference is that:

Disparate treatment claims require proof of intentionally discriminatory treatment of a protected class. Disparate impact claims, by contrast, require no proof of intent, and can be established if a policy or practice has a discriminatory effect on a protected class, even if the policy or practice is facially nondiscriminatory.^[10]

If you consider for a moment the changing nature of constitutional protections, you will see that, from year to year, the things which a restrictive covenant may prohibit will change. So, for instance, the covenant restricting ownership of homes by minorities would have been considered constitutional at the time the covenant was entered, but years later, was obviously unconstitutional after the Supreme Court of the United States ruled in Shelly v. Kraemer.

A question which is often asked by a homeowner is whether any given restrictive covenant is still binding or has terminated. This is an oft-discussed question in law, and there may be several reasons a covenant (or all of the covenants binding a particular property) are no longer in effect. Obviously, civil rights laws may affect particular covenants (although courts will often strike only the offending provision and enforce the remainder of the covenants).

One reason covenants may become invalid involves changes in public policy or local neighborhood character. Courts have stated that that:

[P]ublic policy requires the invalidation of restrictive covenants when there have been changes in the character of the subject land that are “so radical as practically to destroy the essential objects and purposes of the agreement.^[11]

Interestingly, there may be only two Indiana cases in which a restrictive covenant has been overturned for the “substantial change” reason. One is a case where nearly seventy years had passed since a covenant was contracted, and the original business which was restricted by the covenant had grown to the extent that the original size restriction was no longer enforceable.^[12] A second case involved a question of a commercial non-compete covenant, whereby the grantor of land attempted to use a covenant to restrict competition and prevent another store from moving in, despite the grantor no longer operating the type of store in question.^[13]

“What if,” you may ask, “the person buying a particular piece of property was unaware of the restrictions at the time of purchase?” Correct! Another way that covenants may cease to be enforceable is if the purchaser of land has no notice that the covenants exist or will be enforced. This can come about in any number of ways. The Court of Appeals has summarized the issue as follows:

A landowner must have actual or constructive notice of restrictions on the land at the time he acquires title to the land in order for the restrictions to be enforced against him. Concerning notice, we have previously stated: The law recognizes two kinds of notice, constructive and actual. Constructive notice is a legal inference from established facts. Deeds and mortgages, when properly acknowledged and placed on record as required by statute, are constructive notice of their existence and charge a subsequent grantee with notice of all that is known by the record….Notice is actual when it has been directly and personally given to the person to be notified….Because the restrictions on Bonnie Ney's Addition are properly recorded and are within the chain of title of Lot # 18 of Bonnie Ney's Third Addition, McIntyre had constructive notice of the restrictions. “[A] purchaser is bound by any instrument of record found within his chain of title.”^[14]

So, even if a restrictive covenant is not located within a deed, such a covenant, if located within other documents (condominium records, for instance), the covenants will be enforceable against the purchaser.

Another way a person may be put on notice of certain restrictive covenants is through the idea of a “common development” or “common scheme.” Even if there are no actual covenants in a deed or other document:

Where a common grantor opens up a tract of land to be sold in lots and blocks, and before any lots are sold, inaugurates a general scheme of improvement for such entire tract intended to enhance the value of each lot, and each lot subsequently sold by such grantor, is made subject to such scheme of improvement, there is created and annexed to the entire tract what is termed a negative equitable easement, in which the several purchasers of lots have an interest, and between whom there exists mutuality of covenant and consideration.^[15]

In this case, if a land purchaser has no direct notice of covenants, and there is no common scheme of improvement, then the purchaser might not be bound by one or more of such restrictions.

In our next chapter, we will discuss public restrictions on land use, mainly through a review of the land use laws (a/k/a “zoning”).

[1] Id.

[2] Columbia Club, Inc. v. Am. Fletcher Realty Corp., 720 N.E.2d 411, 418 (Ind. App. 1999)

[3] Mayer v. BMR Properties, LLC, 830 N.E.2d 971, 979 (Ind. App. 2005).

[4] Villas W. II of Willowridge Homeowners Ass'n, Inc. v. McGlothin, 885 N.E.2d 1274, 1278 (Ind. 2008); in this case, a covenant prohibited leasing the condominium units to anyone.

[5] Id.

[6] Id.

[7] Shelly v. Kraemer is the case that held that held that courts could not enforce racial covenants on real estate.

[8] Corner v. Mills, 650 N.E.2d 712, various (Ind. App. 1995).

[9] Adult Group Properties, Ltd. v. Imler, 505 N.E.2d 459, 465 (Ind. App. 4th Dist. 1987).

[10] Villas W. II of Willowridge Homeowners Ass'n, Inc. at 1280.

[11] CSL Community Ass'n, Inc. v. Meador, 973 N.E.2d 597, 600 (Ind. App. 2012).

[12] Am. Cannel Coal Co. v. Indiana Cotton Mills, 134 N.E. 891, 893 (Ind. App. 2d Div. 1922).

[13] “Pay Less is attempting to use the covenant to restrict competition for its grocery stores located at other locations. Kroger was within its rights to assign the lease to Pay Less, and if Pay Less had chosen to continue grocery operations at the center, its interest in the lease would support enforcement of the covenant. However, Pay Less voluntarily abandoned grocery operations in the center and thereby severed the restrictive covenant from the occupancy.” Tippecanoe Associates II, LLC v. Kimco Lafayette 671, Inc., 829 N.E.2d 512, 515 (Ind. 2005).

[14] McIntyre v. Baker, 660 N.E.2d 348, 352 (Ind. App. 1996).

[15] Elliot v. Keely, 98 N.E.2d 374, 379 (Ind. App. 1951).