16. Easements (SOF) Flashcards
What is an easement?
1) Holder of dominant tenement benefits from;
2) Right to use (access) another’s land (servient tenement) for special purpose
- NOT possess/enjoy
What is an affirmative easement?
Dominant tenement holder’s right to enter Servient tenement + make affirmative use of it
- Right of way
- Maintain utility lines
- Draining waters
- Polluting air
- Otherwise nuisance/unlawful trespass
What is a negative easement (restrictive covenant)?
Servient tenement holder must refrain from engaging in certain activity in dominant tenement
- Light
- Air
- Support
- Stream water from artificial flow
(LASS)
What is required for easement appurtenant?
1) Dominant tenement
- Benefitted by easement
2) Servient tenement
- Burdened by easement
- Dominant tenement holder can physically use/enjoy servient tenement for ‘special purpose’ (NOT more profit)
Can benefit/burden run with transfer of easement appurtenants?
Benefit runs
- NO need for provision in transfer
Burden runs
- NOT BFP
What is required for easement in gross?
1) Easement holder
- Benefitted by easement
- NO dominant tenement ownership/possession required (easement is independent)
- E.g. Billboards, power lines
2) Servient tenement
- Burdened by easement
- Easement holder can physically use/enjoy servient tenement for ‘personal/commercial’ purpose
Can benefit/burden run with transfer of easement in gross?
Must be for commercial/economic purpose
What is the difference between easement appurtenant and easement in gross?
Easement appurtenant
- Dominant + Servient tenements
- Transfer of benefit + burden (NOT BFP)
Easement in gross
- Servient tenements
- Transfer of benefit + burden (commercial purpose)
How may easements be created by prescription?
(COAH)
1) Continuous
- Statutory period
- NO need for constant use
2) Open + Notorious
- Discoverable upon inspection
- E.g. Underground/non-visible uses (pipes, electric lines)
3) Adverse
- NO Owner’s consent
- NO need to be exclusive (Owner can use too) (unlike AP)
4) Hostile
What is the difference between easements by prescription and adverse possession?
Easement by prescription
- NOT exclusive use
Adverse possession
- Exclusive use
What limitations prevent creation of easement by prescription?
Public lands
Negative easements
How may easements be created by implication (not statute of frauds)?
By existing use (quasi-easement)
1) Apparent + Continuous use on servient tenement
2) Reasonably necessary for enjoyment on dominant tenement
3) NOT interfere with others’ uses
From subdivision
- Grantees’ use must NOT substantially interfere with Owner’s current use
By necessity
- Owner has 2 pieces of land: Owner’s land deprives access to public road/utility + Owner’s sold land has acceess to public road/utility (creates easement by necessity)
- Owner of servient tenement to locate easement
How may easements be created expressly?
By grant (easement > 1 year) (SOF)
1) Writing
2) Signed by servient tenement holder
3) Description (Parties + Land)
By reservation
1) Grantor conveys title to Grantee
2) ONLY Grantor reserves right to use land for special purpose
- Otherwise if TPs’ rights are reserved => Easement is VOID
How may easements be terminated?
(END CRAMP)
Estoppel
- Servient tenement Holder’s conduct + reasonable reliance + change of position
Necessity
- Expires as soon as necessity ends
Destruction
- NOT voluntary
- Structures
Condemnation
- Of servient tenement
Release (written)
- Dominant holder => Servient holder
- Concurrent conveyance
Abandonment
1) Intent
2) Permanent abandonment
- NOT mere non-use (even for ‘long’ period)
Merger of ownership
- Dominant tenement
- Servient tenement (equal/longer duration, e.g. Fee simple vs Life Estate)
- NO revival by separation (UNLESS quasi-easement prior use requirements are met)
Prescription (Servient tenement)
1) Continuous
- Statutory period
- NO need for constant use
2) Open + Notorious
- Discoverable upon inspection
- E.g. Underground/non-visible uses (pipes, electric lines)
3) Adverse
- NO Owner’s consent
- NO need to be exclusive (Owner can use too) (unlike AP)
4) Hostile
5) Substantial interference with Servient Holder’s possession => Indicate to public that easement has terminated
How may easements not be terminated?
Misuse/Overuse
- NOT surcharge servient tenement
- Injunction (remedy)
