Creation of Easements Flashcards
Easements By Implication
Van Sandt v. Royster
Issue: Was An Easement By Implication Created Based on the Original Conveyor’s INTENT?
Analysis:
1) Did the Quasi-Easement exist prior to the partition?
yes, it existed when the property was one parcel.
2) Was an easement by implication created? YES. Meets 5 factors
- Reasonable necessity
- Intent of the parties
- Knowlege / notice or prior use
- Purchase Price
- Difficulty or expense of alternative access.
Factors for Implied Easements
1) Reasonable Necessity: Alternative access cannot be obtained without substantial expenditure, or waste
2) Intent of the Parties to the Conveyance: Circumstances under which the conveyance was made (Not the Language).
3) Knowledge or Notice of the Prior Use
4) Purchase Price
5) Expense of Alternative access.
Easements IN GROSS
Generally + Assignability
- Does not Benefit the Land (Benefits the individual)
- No Dominant Estate (only a Servient Estate)
- Must be clear from the express grant or from surrounding circumstances (Easements Appurtanent = Favored)
Easements IN GROSS
Commercial v. Non-Commercial Easements in Gross
Non-Commercial Easements in Gross (Majority Rule):
Non-Commercial Easements in gross = NOT ASSIGNABLE, unless:
CIRCUMSTANCES OR the DOCUMENT expressly stipulates Assignability.
Easements IN GROSS
Non-Exclusive Easements IN GROSS
- Easement holder has the right to use Easement, but
Servient Estate Owner (Or Exclusive Easement holder) CAN AUTHORIZE others to use the easement. - Servient Estate Retains the right to decide how many use the easement.
Assignability of Easements IN GROSS
Miller v. Lutheran
1) Parties Intended the Easement in Gross to be Assignable. Rights of Fishing and Boating conveyed to Frank C. Miller “and his heirs and assigns.”
2) Easements in Gross which are commercial in nature rather than personal should be assignable.
3) Easement in Gross can be divided but must be used together as a common right.
Dividing a Easement in Gross = both Intent and Burden on the Servient estate must be Reasonable.
One Stock Rule:
Must use easements in Gross as One person.
- Any owner can veto/bar the action of another (Meant to Encourage
Reasonable Exploitation of the Easement in Gross, and prevent unreasonable burden on the Servient Estate.
Easements Appurtenant
Characteristics:
1) Attaches / Benefits the Dominant Estate.
2) Usually Transferable w/ Dominant Interest.
3) Runs with the Land
4) Both Divisible and Assignable.
Easement By Estoppel (or Irrevocable License)
ELEMENTS
1) Owner of the servient estate consents to the dominant estate holders use of Servients Estate
2) The Servient Estate holder knows or should know the dominant estate holder will materially change his position by believing the permissive use will not be revoked.
3) The Dominant Estate Holder reasonably believing the permission will continue SUBSTANTIALLY changes his position by investing in improvements to the Servient or Dominant Estate.
Easements Implied by Necessity
Othen v. Rosier
(Severance must cause the Dominant Estate to become Landlocked)
KEY = TIME OF CONVEYANCE SEPARATING THE PROPERTY
P needs to show his land = Landlocked (at the time of severance)
No Adverse Possession when use is Permissive.
Strict Necessity Standard
Easement by Necessity (Elements):
1) Unity of ownership prior to partition
2) Roadway is a necessity, not a mere convenience.
3) Necessity existed at the time of severance. (Severance must cause Dominant Estate to become Landlocked.)
“Implied Easements”
Easements Implied from Prior Use (elements)
1) Unity Of Ownership - Must have common owner when the pre-existing use was in Place
2) Use in Place before severance - Common Owner engaged in the Use before Severance
3) Use is visible or Apparent at the time of severance (Discoverable by reasonable Inspection)
4) Necessary for the reasonable enjoyment of the dominant estate
Strict Necessity
Owner cannot fairly enjoy the estate without the easement.
Quasi - Easements
Arise when a use was in place at the time a single parcel of land was severed or divided into two.
- Leaves one parcel benefitting another in some way even though the seller and buyer did not discuss use at the time of sale.
- Emphasis on the intent at the time of severance, not the time of the trial.
Termination of Easements
1) Merger - Dominant and Servient Estates held by one person
2) Prescription - Servient estate holder using land in a manner that prevents the easement form being used for a period of statute of limitations, without appropriate response from Dominant owner.
3) Abandonment - Intent to abandon + NONUSE
4) Release = Contractual Agreement
5) Recording Acts - No actual, constructive, or inquiry notice means the servient estate is not bound by the easement.
