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Under the common law such restraints are void as against the public policy of allowing landowners to freely dispose of their property. Perhaps the ultimate restraint on alienation was the fee tail , a form of ownership which required that property be passed down in the same family from generation to generation, which has also been widely abolished.
Equitable easements can be created for physical encroachments where the court balances the hardships of the properties and determines an easement is warranted. When determining whether to award an equitable easement, courts utilize the “relative hardship” test. The test is based on the following three factors: 1. The defendant must be innocent.
The rights may be vested or contingent, [2] and may include an equitable interest. [3] Mortgages and loans are relatively straightforward and amenable to assignment. An assignor may assign rights, such as a mortgage note issued by a third party borrower, and this would require the latter to make repayments to the assignee.
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Salahutdin, the Florida homeowner, sued the City of St. Petersburg in 2023 over a failure to record an easement on his property. The easement contains pipes that supply water to 360,000 residents.
Real covenants and easements or equitable servitudes are similar [9] and in 1986, a symposium discussed whether the law of easements, equitable servitudes, and real covenants should be unified. [4] As time passes and the original promisee of the covenant is no longer involved in the land, enforcement may become lax. [10]
In law, an equitable interest is an "interest held by virtue of an equitable title (a title that indicates a beneficial interest in property and that gives the holder the right to acquire formal legal title) or claimed on equitable grounds, such as the interest held by a trust beneficiary". [1]
Nollan v. California Coastal Commission, 483 U.S. 825 (1987), was a 1987 United States Supreme Court decision that ruled that a California Coastal Commission regulation which required private homeowners to dedicate a public easement along valuable beachfront property as a condition of approval for a construction permit to renovate their beach bungalow was unconstitutional.
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