6. Easements Flashcards
What is a Profit in Land?
A profit is a nonpossesory interest in land where the holder has the right to take resources or remove something from the land of another.
How is a Profit in Land created?
Profits can only be created expressly or by prescription.
Are Profits in Land transferable?
Yes, when the dominant tenement is transferred, the benefit of a profit appurtenant follows the transferred estate.
How are Profits in Land terminated?
Profits in land are terminated the same as easements.
What is a License in Land?
A License is a privilege, usually oral, to do something on someone else’s property.
Is writing required to create a License in Land?
No, writing is not required to create a license in land.
Are Licenses in Land transferable?
No, because a license is personal, it is not transferable unless the licensor intends so.
When does a License in Land expire?
A license in land expires:
- the death of the licensor; or
- the conveyance of the servient estate.
Is a License in Land revocable?
Yes, a license is generally revocable at the will of the licensor.
What are two situations where a License in Land may become irrevocable?
- When someone owns personal property on another’s land with a privilege to access and use the land; or
- When a licensee invests a substantial amount of money into the licensed area of land.
What is an Easement?
An Easement is a nonpossesory interest in the land of another for a specific use.
What are the four types of Easements?
- Affirmative easements
- Negative easements
- Appurtenant easements
- Gross easement.
What is an Affirmative Easement?
An affirmative easement gives the holder the right to do something on the land.
What is a Negative Easement?
A negative easement is a WRITTEN agreement that gives the holder the right to prevent a landowner from doing something on his land.
What is an Appurtenant Easement?
An easement appurtenant benefits the dominant estate and transfers automatically with it.
An appurtenant easement allows property owners to access land that is only accessible through a neighbor’s land.
What is a Dominant Tenement/Estate?
A Dominant estate is an estate that is benefited by the easement.
What happens when a Dominant tenement/Estate is transferred?
The benefit of an easement follows the transferred estate.
What is a Servient Tenement/Estate?
A Servient Estate is land burdened by the easement.
When is there No Easement Appurtenant?
- If the easement is not linked to the land
- Across land that was once owned but previously conveyed
- A deed creating an easement in favor of a third party.
What is an Easement in Gross?
Easement in Gross benefits a person or entity rather than a piece of land, with no dominant estate involved.
Can an Owner of an Easement in Gross make repairs to the easement?
Yes, the easement holder in gross can make repairs needed for use and enjoyment.
When is there No Easement in Gross?
There is no Easement in Gross if the deed benefits any owner of the dominant estate, not just the original holder.
Can Easement in Gross be transferred?
Yes, an easement in gross can be transferred if the grantor intends so and it is commercial in nature.
What is the Duty of an Easement Owner for Maintenance and Repairs of an Easement?
The owner of the easement is responsible for reasonable maintenance and repairs.
What is the Rule for Easements in Light, Air, Water, and Lateral and Subjacent Support?
There is no right to an easement for light, water, and lateral and subjacent support unless a writing is executed.
How are Easements created?
Easements can be created expressly, by implication, or by prescription.
What is an Express Easement?
An easement by express grant must be recorded, signed by the grantor, and comply with deed formalities.
What happens when an Express Easement is transferred?
Transferring the servient estate also transfers the burden if the dominant tenement holder complies with the recording statute.
What are implied easements?
Implied easements are created based on the intention of the parties and surrounding circumstances.
What are three types of Implied Easements?
- Implication by Prior Use
- Implication by Necessity
- Implication by Plat.
What is an Easement Implied By Prior Use?
An easement implied by prior use arises when two formerly unified land parcels had a necessary use before being divided.
What are the four requirements of an Easement Implied by Prior Use?
- Common Ownership: Both parcels were originally part of a single property under one owner.
- Severance: The property was divided into separate parcels through sale or transfer.
- Apparent and Continuous Use: Before the division, there was an obvious and ongoing use of one part of the property benefiting another.
- Reasonable Necessity: The continued use of the easement is reasonably necessary for the enjoyment of the dominant estate (the benefited parcel).
What is an Easement Implied By Necessity?
Easement Implied by Necessity occurs when a landowner conveys landlocked property, creating an automatic right of access.
What are the three requirements of an Easement Implied By Necessity?
- Common Ownership: The parcels were once part of a single property under one owner.
- Severance: The property was divided, and one parcel became landlocked.
- Necessity: The landlocked parcel requires access through the other parcel to reach a public road; without this access, the property cannot be reasonably used.
What is an Easement by Plat?
A buyer in a platted subdivision acquires an implied easement to use streets, alleys, and parks.
What is an Easement by Prescription?
An easement by prescription is gained by adverse possession through actual, open, notorious, and exclusive use for the statutory period.
What happens when language creating the easements expressly limits its use?
The easement is limited to the purpose stated.
What happens when language is not specific as to the use of an easement?
The easement holder can make reasonable use of the easement.
What happens when an Easement holder makes Unreasonable Use of Easement?
It is called surcharging, leading to damages for the servient estate owner and an injunction to stop further surcharging.
What are the three methods that an easement can be terminated?
- Destruction of the servient estate
- Termination based on the actions of the easement holder
- Termination based on actions of the owner of the servient estate.
How does Destruction of the Servient Estate terminate an easement?
Destruction of the servient estate will terminate an easement unless intentionally caused by the owner of the servient estate.
What are the Five Types of Termination Based on the Actions of the Easement Holder?
- Merger of Title
- Written Release
- Abandonment
- Estoppel
- Severance.
What is Merger of Title by Easement Holder?
Merger of Title occurs when the owner of the dominant estate also acquires the servient estate.
What is a Written Release by Easement Holder?
A Written Release expressly terminates the owner’s rights in the easement.
What is Abandonment by Easement Holder?
Abandonment requires proof of intent to abandon and an affirmative act in furtherance of the intent.
What is Estoppel by Easement Holder?
Estoppel occurs when the servient estate owner relies on the easement holder’s actions or abandonment.
What are the three requirements for Estoppel by Easement Holder?
- An act or representation regarding the easement
- Justifiable reliance on that act or representation
- Damages.
What is Severance by Easement Holder?
Severance occurs when the owner of the dominant estate tries to sever the easement from the dominant estate.
What are the Three Types of Termination Based on Actions of the Owner of the Servient Estate?
- Prescription
- The Servient Estate is Sold to a Bona Fide Purchaser
- End of Necessity.
What is Prescription By the Owner of the Servient Estate?
The owner interferes with the use of the easement for the statutory period.
What is the Sell to a Bona Fide Purchaser by the Owner of the Servient Estate?
The servient estate is sold to a bona fide purchaser who pays value and takes without notice.
What is the End of Necessity by the Owner of the Servient Estate?
The easement ends when the necessity ends for an easement created by necessity.
What are the ways an easement may be terminated?
- When its term ends
- When released by the holder of the dominant estate
- When dominant and servient estates come into common ownership
- By abandonment
- By estoppel
- By prescription
- When a governmental body acquires the servient estate through eminent domain.
