9) Easement and Other Nonpossessory Rights Flashcards
Easement
A right to use another’s real property for a particular purpose
Interests in real estate that are limited to use, not possession.
Easement holders limited interest is protected against interference by third parties and cannot be terminated at the will of the owner of the land that it burdens.
Easement Appurtenant
The right of an owner of a parcel of land to benefit from the use of another’s land.
Dominant and Servient Estate.
Any conveyance of the dominant estate automatically includes the easement; it runs with the land.
However, it cannot be separated and conveyed independently.
EA is irrevocable; it cannot be caneled by the servient owner or terminated by a conveyance of the servient tenement. When servient tenement is sold or otherwise conveyed, the property remains subject to the existing easement.
Dominant Estate
The parcel of land that benefits from an easement appurtenant; also called dominant tenement.
Servient Estate
The parcel of land that is subject to an easement appurtenant; also called servient tenement.
Easement in Gross
An easement that exists as a personal right apart from a dominant estate.
Although a servient estate does exist, the privileges given by theeasement belong to a “person”, which may be an entity such as a corporation. (e.g. utilities, billboards, telecom)
EIG for noncommercial purposes are considered a personal right or privelge. Only easement holder can use is and it cannot be sold, assigned, or otherwise transferred and it terminates on death of its holder.
A commercial EIG is freely transferable and may be sold or assigned , but easement given for a specific purpose, cannot be used for another purpose.
Express Grant
An easement created by an owner expressly granting in a deed a specific right to another to use the owner’s property.
Express Reservation
Where a property owner conveys title to another by deed specifically reserving within the deed an easement for himself or a third party.
Easement by Implication
Created wehn courts presume that the parties intend to create an easement because certain facts exist when real estate is conveyed. (prior use, necessity, plats & maps, dedication)
Easement by Necessity
An easement that permits the owner of a landlocked parcel to cross a parcel of land which the landlocked parcel formerly was a part.
Dedication
The grant of real property such as a public street to a governmental unit for public use.
Easement by Prescription
Created through the wrongful use of another’s land for a period of time. (10-20 years depending on the state)
The use must also be adverse to the owners interest (open and notorious) as well as continuous and uninterrupted.
Release
A written agreement used by the holder of a easement appurtenant or in gross to extinguish the easement.
Estoppel
An easement is extinguished by estoppel if the holder causes the servient estate owner to believe that the easement will no longer be used and the servient owner justifiably relies on this belief and suffers some damage as result.
Abandonment
Nonuse of an easement for a substantial period of time.
Holder’s intention to surrender it must be clearly established.
This is accomplished when the holder discontinues use, states the intention to do so, or acts in a manner consistent with discontinued use.
Prescription (Extinguished)
An Easement by Prescription may be extinguished after the owner of the servient estate acts in a manner adverse to the easement for the prescriptive period.
Must be open, notorious, and uninterrupted.
