Easements

Question 1

Easement

Answer 1

1. An interest in the land of another that allows limited use (full use creates an estate)
2. The interest can be protected from third parties (property interests don’t exist unless the law recognizes them)
3. The interest is not a right extended to all non-land possessors (I.e. you don’t need an easement to have support rights, riparian rights)
4. The interest can be created by conveyance (customary rights are not easements)

Question 2

Easement in Gross

Answer 2

• An easement that benefits an individual

- Ownership of the easement that is a personal right

Question 3

Affirmative Easement

Answer 3

Its owner can do something on the others land

Question 4

Negative Easement

Answer 4

its owner can prevent the land title holder from doing something on his or her own land

Question 5

Appurtenant Easement

Answer 5

• An easement that benefits a neighboring parcel of land

- Ownership of the easement runs with the land-the ownership of the dominant estate give title to the easement

Question 6

Dominant Estate

Answer 6

The estate that owns and uses an appurtenant easement

Question 7

Servient Estate

Answer 7

The estate must allow the easement owner to use the land

Question 8

Profit

Answer 8

A special kind of easement that allows its holder to enter land and remove specific items (minerals, farm goods, etc.) from the land

Question 9

Favored Type of Easements

Answer 9

• Most jurisdictions favor appurtenant easements over easements in gross
• Easements in Gross may not be conveyable or inheritable
• Easements in Gross may only be recognized for public uses such as utility lines and roads

Question 10

Estate, Easement, and LIcense Distinguished

Answer 10

• An estate is a property right that includes the right of possession
• An easement is a non-possessory property right that allows use but not possession; interference with an easement will be enjoined
• A license is a contractual right to use land; usually, interference with a license will result in a damage award

Question 11

Irrevocable License

Answer 11

A few jurisdictions recognize these where the licensor has engages in conduct that should estop the licensor from revoking the license

Question 12

Methods to Create an Easement

Answer 12

• Expressly by deed
• By necessity
• By implication
• Prescriptively

Question 13

Easement by Necessity

Answer 13

• An original unity of ownership of the servient and dominant estates
• The dominant estate has no way to reach a public road except over the servient estate

Question 14

Easement by implication (map)

Answer 14

If a map is referred to in a deed and that map shows something that appears to be an easement, one will be created.

Question 15

Easement by Implication (pre-existing use)

Answer 15

• An original unity of ownership of the servient and dominant estates
• Before the ownership was severed, the dominant estate used land in the servient estate
• The use was apparent, obvious, continuous, and permanent
• The easement is necessary and beneficial to the dominant estate

Question 16

Prescriptive Easement

Answer 16

The use of the servient estate by the dominant estate was

• open–visible, not hidden
• adverse–against the servient estate holders title, non-permissive
• continuous–used as expected for the easement
• uninterrupted–used without break
• under a claim of right–used as the dominant’s estate’s property
• for the period within the statute of limitations

Question 17

Adverse Possession & Prescriptive Easement Distinguished

Answer 17

• If the dominant party took possession of the servient land (control with the intent to control), adverse possession results; otherwise a prescriptive easement is created.
• To show possession, the law requires that the servient holder be excluded from possession

Question 18

Acquiescence

Answer 18

A minority rule that requires that the servient estate holder knows of the use and says nothing

Question 19

Customary Rights

Answer 19

A minority Rule that establishes a prescriptive right for the public at large to continue a use that has always been seen as acceptable

Question 20

Use of an Easement

Answer 20

• An easement can only be used by the dominant party or estate
• The character of the use (based on contemporary standards) cannot be unreasonably altered from the original use
• The quantity of the use cannot be unreasonably increased–a surcharge

Question 21

Rule of Reasonableness

Answer 21

The rule to interpret an ambiguous easement that requires both the dominant and servient holders to be reasonable

Question 22

Termination of an Easement

Answer 22

• Expressly by deed from the dominant to the servient holder
• By merger if the servient estate acquires title to the dominant estate or vice versa
• By abandonment if the dominant holder stops using the easement and has the objective intent never to use the easement again
• By prescription if the servient estate interferes with the use of the easement openly, adversely, continuously, and uninterruptedly, under a claim of right for the period given in the statute of limitations

Question 23

Real Covenant

Answer 23

A promise about land that runs with the land

• The promise touches and concerns the land
• The contracting parties intended the promise to run with the land
• The appropriate privity exists

Question 24

Touches and Concern (Powell & Bigelow)

Answer 24

• A promisor’s estate is less valuable because of the promise
• A promisee’s estate is more valuable because of the promise

Question 25

Touches and Concerns (restatment)

Answer 25

The promise is of direct benefit to the use or the enjoyment of the land

Question 26

Mutual Privity

Answer 26

The parties have a continuing interest in the same land:

• A possessory estate with its associated future interest
• Cotenants

Question 27

Horizontal Privity

Answer 27

The parties who created the covenant were the grantor and grantee on a deed which contained the promise

Question 28

Vertical Privity

Answer 28

The parties in the enforcement action succeeded in interest from a contracting party

Question 29

Equitable Servitude

Answer 29

A real covenant-like promise associated with the land most typically because the right kind of privity doesn’t exist

Question 30

Termination of a Real Covenant or Equitable Servitude

Answer 30

• Expressly by a deed
• By abandonment when the dominant parties waive the covenant and have the objective intent never to enforce the covenant again.

Question 31

Non-enforceability of a real covenant or equitable servitude

Answer 31

• By waiver when the dominant parties fail to enforce the covenant when an earlier breach occurred. (Covenant becomes enforceable if all violations stop)
• By the changing use doctrine where the use of the land in the area of the covenant has changed so dramatically since the covenant was created that it no longer makes sense to enforce the covenant (equity only) (Becomes enforceable if it makes sense again)

Question 32

Lateral Support

Answer 32

Support of the land from the side

Question 33

Subjacent Support

Answer 33

Support of the land from below

Question 34

Strict Liability for Removing Support

Answer 34

Strict liability is imposed for removing support if the land was in its natural condition or if it would have collapsed if it had been in its natural condition

Question 35

Riparian Rights

Answer 35

The right of a title holder to use water in a lake, river, or stream, that in contiguous with the title holder’s land as long as the land is within the watershed of the body of water

Question 36

Natural Flow Theory of Riparian Rights

Answer 36

Each riparian owner is entitled to the water that would be provided by the natural flow of the watercourse

Question 37

Reasonable Use Theory of Riparian Rights

Answer 37

Each riparian owner is entitled to the water that would be provided if not other riparian owner is make and unreasonable use

Question 38

Air rights

Answer 38

Each land title holder can use as much of the space above the land as he or she wishes

Question 39

Air Rights-air planes

Answer 39

Airplanes are privileged to cross land as long as they are above the minimum safe altitude of flight as defined by the FAA