Easement II

Question 1

List and explain the five elements of easement by prescription

Answer 1

• Continuous; uninterrupted USE for the statutory time period consistent with that of a reasonable easement holder’s use
• Open and notorious; visible USE, not covert or hidden
• Hostile; USE without servient owner’s permission
• Actual; literal USE, not symbolic or hypothetical
• Exclusive

Question 2

What is the difference in the “exclusive” element between adverse possession of real property and easements by prescription?

Answer 2

• In most states, the user can acquire a prescriptive easement even though the easement is also used by the servient owner and others.
• All “exclusive” means is that the right must not depend on a similar right in others (i.e., the land user must have an independent right to claim an easement)

Question 3

For both easements created by implication and necessity, what does “unity of ownership”mean?

Answer 3

• UNITY OF OWNERSHIP means that we start with a single landowner.

Question 4

For both easements created by implication and necessity, what does “time of severance”mean?

Answer 4

– The moment of conveyance of one of these parcels (either dominant or servient) is the TIME OF SEVERANCE

Question 5

What are the three requirements for an implied easement?

Answer 5

Rule: Courts will imply an easement from a prior or existing use if three requirements are met:
1. There was a unity of ownership between the servient and dominant tenements;
2. An apparent, existing, and continuing use of one parcel at the time of severance; and
3. At the time of severance, the parties expected that the use would survive division because it was reasonably necessary to the dominant tenement’s use and enjoyment.

Question 6

What are the three requirements for an easement by necessity?

Answer 6

Rule: An easement of a right of way will be implied by necessity if the following requirements are met:
1. There was a unity of ownership between the servient and dominant tenements;
2. The necessity existed at the time of the severance of the two tenements.
3. Depending on the jurisdiction, either strict or reasonable necessity.

Question 7

For easements by necessity, what are the two possible standards for necessity?

Answer 7

• Strict Necessity: The claimed easement is the only way to access the dominant tenement.– This is the traditional and still dominant view.
• Reasonable Necessity: Alternative access to the dominant tenement cannot be obtained without a substantial expenditure of money and/or labor.(If this is the case, an easement by necessity is still allowed.) (This is the minority view)

Question 8

For easements by necessity, what is the majority rule for the two possible standards for necessity?

Answer 8

Strict