1st Assessment

Question 1

Easement

Answer 1

An easement is non possessory interest to use land of another. No Ownership rights

Question 2

Servient Estate

Answer 2

The land subject to easement that is burdened by the easement is called Servient Estate.

Question 3

Dominant Estate

Answer 3

The land benefited by the easement, if any, is called dominant estate.

Question 4

Classification of Servitudes - 2

Answer 4

a) Affirmative = Easement

b) Negative = Covenant

Question 5

Easement (aka Affirmative Servitude)

Answer 5

Allows the holder of the easement to do things, which would not be permissible if the easement did not exist. (for example use the road across to get to your property).

Question 6

Covenant (aka Negative Servitude)

Answer 6

The holder of Covenant prevent the land owner from performing acts upon land that he would otherwise have legal right to perform.

Example: A pays B to not build anything on land that will obstruct his view/ air.

Question 7

2 Types of Easements

Answer 7

a) Appurtenant Easement

b) Easement In Gross

Question 8

Appurtenant Easement

Answer 8

Appurtenant Easement attach to and benefit a particular parcel of land.

It automatically transfers with the sale of the property/ land. It runs with the land.

When dominant estate is transferred, any easement appurtenant to it automatically passes with it.

Question 9

Easement in gross

Answer 9

Easement in gross do not attach to land or benefit a particular parcel of land.

They attach to a Person or Entity (business)

An easement in gross can be transferred by sale if the easement is commercial in nature.

Question 10

How to determine whether an easement is appurtenant or in-gross?

Answer 10

The intent of the Grantor, language, and relevant provision of deed and circumstances is looked in order to determine whether an easement is appurtenant or in-gross.

When there is an ambiguity between appurtenant or in-gross, it is Presumed to be Appurtenant

Question 11

Reservation Easement

Answer 11

Reservation Easement arises when the dominant owner grants the servient land to the servient owner but retains or reserves an easement over the property.

Reservation retains for the grantor a newly created property right.

Traditionally, reservation in favor of third party was invalid.

Question 12

In order to determine whether a deed intended to convey fee simple title or an easement, following factors need to be considered:

Answer 12

1. Amount of consideration,
2. The description of the property conveyed,
3. The limitation upon the use of the property,
4. The type of interest that best serves the manifested purpose of the parties,
5. The wording used in the conveyance document,
6. To whom the property was accessed and who paid the taxes on the property,
7. How the parties to the conveyance, or heirs or assigns have treated the property.

Question 13

License

Answer 13

It is the permission to use to the land belonging to the licensor

License can be oral or in writing.

A license is generally revocable at the will of the licensor.

Question 14

Relocation of easement

Answer 14

Majority Rule: (Traditional/ Common Law)
Once the location of the easement is fixed, prevents the owner of the servient estate from unilaterally relocating the easement; the easement can only be relocated with the consent of the easement holder.

Minority Rule: (Restatement)
Once the location of the easement is fixed, Restatement = allows for unilateral relocation to permit use or development of the SERVIANT estate under certain conditions. as long as:

a) the change does not unilaterally reduce the utility of the easement,
b) make it more difficult to use and and enjoyment of the easement,
c) frustrate the purpose of easement.

Question 15

Maintenance and Repair

Answer 15

In the absence of express writing, the easement owner (dominant estate) have a duty to make necessary repairs so that it doesn’t interfere with servient owner’s use and enjoyment of property.

Similarly, the easement owner (dominant estate) must not unreasonably increase burden on servient estate.

The owner of the servient estate can use his property in whatever manner he chooses, as long as he does not hinder the use and enjoyment of the easement.

The owner of the servient estate has a duty to refrain from interfering with easement owner’s enjoyment of her rights.

Question 16

Succession of Dominant Estate

Answer 16

Unless there is an express provision in the deed, an appurtenant easements presumed to be transferred with dominant estate.

Appurtenant easement is not transferred to non-dominant land.

Question 17

Succession of Servient Estate

Answer 17

If the successor of the servient estate purchase the servient estate without the notice of the easement, the easement will be extinguished and new owner will not be subject to the burden of the easement. Notice may be actual or inquiry or constructive (Recorded in the deed).

Question 18

Transfer of Servient Estate

Answer 18

Any transfer of title to the servient estate usually transfers the burden of the easement. It does not apply:

1. To bona fide purchasers who did not have actual or constructive notice - easement is extinguished.
2. The owner of dominant estate agrees to the release of the easement.

Question 19

Easement by Prescription

Answer 19

Adverse use of burdened parcel for same period of time necessary to acquire an easement by prescription.

Question 20

Easement by ESTOPPEL

Answer 20

Found in 3 circumstances (pg. 545):
1 - Noncompliance with Statute of Frauds
2 - Reasonable reliance on continuation of consent
3 - Fraud or misrepresentation

1) starts with a permissive use, eg first neighbor permits second neighbor to use her land
2) then the second neighbor relies on the first neighbor’s promise
- reliance must be reasonable and in good faith
- the second neighbor made changes based on reliance of the promise
3) finally, the first neighbor withdraws the permission

result: if reliance was detrimental to the second neighbor, the first neighbor is estopped from withdrawing permission, in effect creating an easement

Question 21

Easement by NECESSITY

Answer 21

1. The land was once held in COMMON ownership.
2. The land was severed.
3. The severance created the necessity. [The necessity is usually access to landlocked land.]
   * Necessity is Strictly Necessary
   The required extent of the claimed easement’s necessity will be less when necessity is the only circumstance from which the inference of intention will be drawn.

The more pronounced a continuous and apparent use is, the less the degree of convenience of use necessary to the creation of an easement by implication

An easement may lay dormant (unused) through several transfers of title; however, it continues to pass with the dominant estate and may be exercised at any time by the holder

Question 22

Non Express / Implied Easement

Answer 22

Non Express Easement can be created through:
4 kinds
1) easement by necessity
2) easement by implication (easement by prior use)
3) easement by prescription
4) easement by estoppel

Question 23

Easement by PRIOR USE (Implication)

Answer 23

1. Parcels were previously owned by a COMMON OWNER / grantor
2. One parcel was previously used for the benefit of the other parcel.
3. That use was apparent, permanent, and continuous.
4. The easement is reasonably necessary [or convenient] for the enjoyment of the dominant estate.
5. No contrary intention is expressed or implied.
   - reasonably necessary is a lesser standard than strictly necessary

Easements created by implication arise as an inference of the intention of the parties. Proof of the prior use is evidence that the parties probably intended an easement.
- Issue is often whether the easement is “necessary” for the use of the holder’s property.

Question 24

Easement by PRESCRIPTION

Answer 24

• it’s like acquiring an easement by adverse possession
• important difference: adverse possession is about possession, whereas an easement by prescription concerns use, not possession
• elements are the same as adverse possession:
• continuous for a statutory period
• open and notorious
• adverse + hostile
• exclusive (property owner did not exclude use)

Question 25

not easements - profit and license

Answer 25

• profit: right to enter another’s land and remove a specific natural resource
• operate similarly to easements, but profits cannot be created by necessity

-license: a revocable permission to USE another’s land; eg a ticket to a sporting event, the permission you give to a plumber to come into your house

Question 26

Succession of Easement in Gross

Answer 26

In order to pass easement in gross to successors, the easement must be assigned.

Question 27

Easement vs lease

vs license

Answer 27

Lease = possessory right to use a defined space for a certain period of time
License = a limited right to use or enter land of another , can be revoked at will of grantor

Question 28

Creating of Express Easement

Answer 28

1- At time property is sold
2 - By deed that coveys the easement itself

Statute of Frauds requires the easement be in writing to be enforceable

Question 29

ELEMENTS of Express Easement to run w/ BURDENED Estate

Answer 29

1 - writing
2- notice
3 - intent

Question 30

ELEMENTS of Express Easement to run w/ BENEFITED / DOMINANT Estate

Answer 30

1 - Writing

2 -Intent

Question 31

Can an Appurtenant Easement be separated from the land?

Answer 31

An appurtenant easement cannot be severed from the land – an owner of the dominant estate who sells the land cannot retain the benefit of the easement.

Question 32

Transfer of Dominant Appurtenant Easement

Answer 32

Appurtenant easements are transferable by definition – when the dominant estate is sold, the new owner also owns the appurtenant easement attached to the land.

Question 33

What is the SCOPE of an easement?

Answer 33

• the uses the easement owner may make of the servient land, and the restraint upon the fee owner’s use that the easement owner may insist upon, due to her ownership of the easement.
• the limit/extent of the easement’s use by its holder.
• Purpose and use/scope should be expressly stated in the easement deed.

The manner of use may change over time to take advantage of technological developments and to accommodate normal development of the dominant estate
or
of the enterprise benefited by the easement so long as the use does not unduly burden the servient estate.

Question 34

RULES / Duty for the owner of the easement

Answer 34

The owner of an easement may
- prepare, maintain, improve, or the repair the easement in a manner to promote the purposes for which the easement is created.

• may not place an undue burden upon the servient estate.
• may not interfere with the rights of others who have a similar right of use.

Question 35

RULES / duty The owner of the SERVIANT estate

Answer 35

MAY NOT interfere with the use of the easement by the easement holder.

Question 36

Apportionability - Exclusive vs Non- Exclusive

Answer 36

Non-exclusive (servient owner retains the privilege of sharing the benefit of the easement), thus not apportionable by the easement holder to another.

Exclusive (servient owner excluded from participation in the easement), thus apportionable by the easement holder to another.

Question 37

What If the scope is ambiguous?

Answer 37

• then the holder of an easement is entitled to use the servient estate in a manner that is reasonable to accomplish the purpose of the easement as contemplated by the parties at the creation of the easement.

Question 38

Scope Considerations

Answer 38

** Questions**
What uses were contemplated by the grantor at the time the easement was created?

What uses will constitute an unreasonable burden on the servient estate?

If the easement is for a particular purpose, is the use reasonably included within that purpose?

Question 39

Scope for owner of an Appurtenant Easement

Answer 39

• owner of an appurtenant easement cannot use the easement for service of land that was not part of the original dominant estate at the time that the easement was created

Question 40

RULE on Subdivision of the Dominant Estate

Answer 40

• Unless forbidden by the terms of the easement’s creation, the benefit of an easement appurtenant moves to each portion of the dominant parcel upon its subdivision and transfer.
• Whoever succeeds to the subdivided parts of the dominant estate may use the easement. However, the owners of an easement may not, by reason of their subdivision, cause an undue burden upon the servient estate

Question 41

Easement by ESTOPPEL - ELEMENTS

Answer 41

ELEMENTS:
1. Permission from the landowner to use the land;

2. Foreseeable and reasonable reliance on continuation of the permission;
3. Changed position by the claimant in reliance on the continuation; and
   Finding an easement is necessary to prevent injustice.

Question 42

Easements by PRESCRIPTION - ELEMENTS

Answer 42

ELEMENTS:

1. Open and notorious;
2. Continuous;
3. Exclusive; and
4. Actual use (not possession);
5. Adverse and hostile (claimant was trespassing; non-permissive use).

Question 43

Easements Implied by PRIOR USE - ELEMENTS

Answer 43

ELEMENTS:

1. Parcels were previously owned by a common grantor/owner.
2. One parcel was previously used for the benefit of the other parcel and that use was apparent, permanent, and continuous.
3. The easement is reasonably necessary [or convenient] for the enjoyment of the dominant estate.
4. No contrary intention is expressed or implied