10. Easements

Question 1

What is easement?

Answer 1

Grant of non-possessory use/enjoyment of another’s land

Question 2

How can easements be created?

Answer 2

(PING)

Prescription (COAH)

1) Continuous use
2) Open + Notorious
3) Actual (shared use allowed, unlike Adverse Possession)!!!
4) Hostile
- NOT public land

Implication

• Previous use was apparent
• Easement expected to survive division

Necessity
- Sale of land (no exit)

Grant

• More than 1 year
• In writing
• Deed elements (SoF)
• OTHERWISE => Licence

Question 3

What are the types of easements?

Answer 3

Affirmative easement
- Affirmative use of servient tenement

Negative easement

• Prevent use of servient tenement
• E.g. Restrictive covenants, light, air, support, flow of artificial stream

Question 4

What type of easements can be created by grant?

Answer 4

Easement appurtenant

• Benefits dominant tenement
• Benefit passes with dominant tenement
• Burden passes with servient tenement (UNLESS new owner is Bona Fide Purchaser)

Easement in gross

• Benefits individual/legal entity commercially
• Transferrable (ONLY for commercial purpose)

Question 5

How can easements be terminated?

Answer 5

(END CRAMP)

Estoppel

Necessity
- By expiration

Destruction
- NOT voluntary

Condemnation

Release
- In writing

Abandonment

• By physical intent!!!
• NOT mere non-use!!!

Merger (Dominant Tenements + Servient Tenements)
- Duration of Servient Tenement (Fee Simple) >= Duration of Dominant Tenement (Life Estate)!!!

Prescription (adverse possession)

Question 6

When is Subsequent Purchaser bound by easement in land sale?

Answer 6

1) Deed properly recorded

2) Constructive notice
- Easement discoverable by title search