Class 3: Zoning Flashcards
Review: What is an easement?
A right to do something on someones land. Non-possessory right.
Review: What is the different between an affirmative or negative easement?
Affirmative gives the right to do something on your land
Negative forbids someone from doing something.
Review: What are some negative easements?
Water easements, view easements, solar easements etc.
Review: What is an easement appurtenant or in gross?
Easement appurtenant attaches to the land.
Easement in gross attaches to a person.
Review: Whats the difference between a dominant tenement and a servant tenement?
A dominant is a property benefited by the easement.
A servant is a property burdened by the easement.
Review: These are the ways to create an easement. Explain each one.
Expressly created
Implied by prior use
Implied by necessity
created by prescription
Ways to create an easement:
Expressly Created – through a writing b/c the statute of frauds applies to interests in land, such as easements.
Implied By Prior Use – in certain situations, the law will imply that an easement was created. It is reasonable assumed the easement was to continue when the land was divided.
Implied By Necessity – if an easement is the only way to access land or get something done. (Absolute necessity required – not just convenience.)
Created By Prescription – earned by regular use, like adverse possession.
Review: The elements for a easement by prior use are:
Initial unity of ownership
Severance of the title
An existing apparent and continuous use
Reasonable neccessity for that use.
Explain each.
Initial unity of ownership (of the now dominant and servient estates).
Severance of the title to create the dominant and servient estates.
An existing (some prior use), apparent, and continuous use of one parcel for the benefit of the other parcel.
Reasonable necessity for that use. (Necessity helps impact the intent of the parties, which is why it is a requirement.)
Review: What is an easement for necessity?
The elements are:
Unity of ownership
The right of way is a necessity
it must exist at the time of
Explain them.
It is for rights of way (must be absolute, strictly)
Elements for implied easement by necessity for rights of way:
1) Unity of ownership of the alleged dominant and servant estates.
2) The right of way is a necessity, not a mere convenience (strict necessity required); AND
3) The necessity must exist at the time of the severance of the estate.
Review: Whats the difference between implied easements by prior use and implied easements by necessity?
Easements by necessity apply only to rights of way – ingress and egress – to landlocked parcels.
Easements by necessity do NOT require that the use be in existence at the time of creation – that is, it need not be a prior use
Review: What is a prescriptive easements?
If you have permission then what?
When does the SOL begin?
Its a easement by adverse possession (OCEAN)
If you have permission, it’s not adverse thus not prescriptive.
SOL begins when the dominant and servant estates are not owned by the same person.
Review: Hypo
Right next to Wendi’s home is a golf club. Every day, several golf balls are driven onto her property, and the players routinely come onto Wendi’s property to retrieve the golf balls.
If this continues for the statutory period, will the golf club acquire a prescriptive easement over Wendi’s property?
Yes! This actually happened to Conrad Hilton (of Hilton Hotels fame), and he lost.
How to prevent this?
Erect a fence to interrupt/stop people from getting the golf balls – or get a written agreement with the club to ALLOW/permit them to get the balls, which would negate the hostility element.
Review: Hypo
Eric owns Blackacre. He records a deed with himself naming himself the grantee of an easement for a road over Blackacre (from adjacent property that he also owns).
Is this easement valid?
No.
Rule: A person cannot create an easement in their own property.
Review: Hypo
Courtney owned two adjoining lots with existing houses on them. She sold one to Natalie. A driveway and a sewer line ran from Natalie’s new house to the street. After the sale, part of the driveway and part of the sewer line ran over (and under) Courtney’s lot. The deed conveying the lot to Natalie did not mention the driveway or sewer line.
Does Natalie have a right to continue using the drive or sewer line?
Yes, if she can show all the elements of an easement by prior use.
(1) There was unity of ownership that was severed. (2) the use was likely in place before the severance. (3) the use was visible for the driveway and apparent for the sewer; and
(4) it is likely reasonably necessary to use the lot for a residence.
Review: Hypo
Kyle deeds to his next-door neighbor, Tim, the right to park in his parking lot, which gives Tim an easement. But Tim then sells his home to his sister, and moves five miles away. When Tim comes to visit he continues to park in Kyle’s lot, and Kyle doesn’t object. But Kyle does object when Tim’s sister parks in his lot.
What would Kyle’s best argument be for this discrepancy?
That this is an easement in gross that only was intended to benefit Kyle, no matter where he lived. Tim’s sister would argue that the intent was for an easement appurtenant, which benefits the land.
Thus, when she bought Tim’s property, she now gets the benefit of the easement.
Review: Hypo
The deed from Matt to DeMarr, which land-locks DeMarr’s property provides for access to DeMarr’s land over a strip of Matt’s land that is narrow, steep, and very inconvenient for DeMarr to use. DeMarr later protests that he needs better access and asserts a way of necessity.
Is DeMarr likely to get an easement by necessity? Why or Why not?
No. There must be strict necessity in most jurisdictions – that means no access. Inconvenient access isn’t good enough, especially in situations where an easement of way was already bargained for in the land transaction.
