Easement III

Question 1

When is a dominant tenement (benefited land) transferred to the next owner

Answer 1

Dominant tenement(benefit) automatically transferred to Mr. X, regardless if it is even mentioned in the transfer.

Question 2

When is a servient tenement (burdened land) transferred to the next owner?

Answer 2

Servient tenement(burden) is also automatically transferred to Mr. Y UNLESS Mr. Y is a BFP—i.e., a purchaser for value without notice of the easement. (AIR)

Question 3

AIR refresh

Answer 3

Second criteria for BFP:– At the time of his purchase, Mr. Y had to be without notice that there was an easement on his land.
* Remember AIR: Actual, Inquiry, and Record Notice
– Actual Notice: Mr. Y actually and literally learned that there was an easement on his land.
– Inquiry Notice: Whether Mr. Y looks or not, he is on notice of whatever a routine inspection of Blackacre would reveal.
– Record Notice: Mr. Y is on notice of B’s easement if, at the time Mr. Y takes, B’s deed of easement was properly recorded

Question 4

How can BFPs without notice of the easement be protected by Recording Acts?

Answer 4

BFPs without notice of the easement can be protected by Recording Acts.
– Specifically, Recording Acts can be used as a defense by subsequent owners of the burdened parcel that want to stop use of the easement.

Question 5

When is an easement in gross transferable?

Answer 5

The easement in gross is not transferable unless it is for commercial purposes.
– Under common law, it was not transferable if it was for personal benefit. This remains the majority rule.

Question 6

How is an easement in gross transferred?

Answer 6

If it is passed at all, it must be independently transferred. It is not automatically transferred.
– This is usually accomplished through grant

Question 7

What is the rule for the scope of an easement?

Answer 7

The scope of an easement is set by the terms or conditions that created it. Unilateral expansion of an easement is not permitted.