Easements

Question 1

How is a servitude different from possession?

Answer 1

Servitudes DO NOT bestow a right to possess

All you get is the right to use the land in some way

Question 2

Labels (10)

Answer 2

1) Easement Appurtenant – Willard
2) Easements in Gross
3) Easements by Implication – Van Sandt
4) Easements by Necessity – Brown
5) Easement by Proscription
6) Negative Easements
7) Profits
8) Licenses
9) Real Covenants
10) Equitable Servitudes

Question 3

What is an easement?

Answer 3

A non-possessory property interest that confers a right to use another’s land

Question 4

Easement Appurtenant

Answer 4

Allows a dominant estate owner to use a servient estate for the benefit of the dominant estate owner

E.g., Right to use a pathway through another’s property

Attaches to the land and passes automatically – transferrable

i.e., if dominant or servient estate is sold, the easement remains in place with respect to the new owners

Question 5

Easement in Gross

Answer 5

Entitles an individual or entity (not a dominant land owner) to use the servient estate

Does not attach to land; there is no dominant estate

E.g., right to place a billboard on another’s lot, right to run a utility line across land, right to fish in another’s pond

Similar to a license, BUT different because it is irrevocable and transferrable

Question 6

Implied Easement

Answer 6

An easement legally implied based on prior use by a common grantor on land subsequently divided into multiple plots

ONLY LAST AS LONG AS NECESSARY

E.g. – A owns Blackacre and Whiteacre; A builds a driveway on Blackacre in order to access Whiteacre. A sells Blackacre to B

A will likely have an implied easement

E.g. – Same facts as above but A sells Blackacre to B and Whiteacre to C, who wants continued use of the driveway on Blackacre.

C will have an implied easement for use of the driveway

Question 7

Implied Easement Requirements (4)

Van Sandt

Answer 7

(1) Original land has common ownership
(2) Prior use before land is subdivided
(3) The necessity must be apparent
(4) Continuing use must be necessary

Question 8

How does an implied easement disappear? (2)

Answer 8

(1) If the lots are merged back into one
- Can’t have an easement on your own land

(2) If easement is no longer necessary
- i.e., add septic tanks

Question 9

Easement by Necessity

Answer 9

An easement can arise if access to or from a property is impossible without the easement

i.e., the easement’s existence becomes necessary because the land cannot be reached without it

Question 10

How is an easement by necessity created?

Answer 10

Usually arises when an owner sells a portion of property, resulting in one lot owner being deprived of access to a public road

The owner of the servient estate can choose a reasonable location for the easement

E.g., A acquires Whiteacre from B, who owns the adjacent property, Blackacre; Whiteacre is bordered on all three sides by wetlands, meaning A’s only access to the nearest public road is through Blackacre; A will be able to get an easement by necessity to access the public road.

Question 11

Requirements for Easement by Necessity (3)

Answer 11

1. Necessity must be strict; AND
2. Servient and dominant estates were originally under common ownership; AND
3. Necessity arises because of, and is caused by, a conveyance that breaks up the common ownership

Question 12

How to terminate an Easement by Necessity?

Answer 12

Automatically terminates when the necessity ends

Question 13

Scope of Easements (Maj. Rule)

Answer 13

Holder of easement appurtenant can’t use the easement to benefit anything other than the dominant land

Normal remedy if restriction is violated, the remedy is an injunction because this is considered trespass

If easement is used beyond scope, servient tenement can enjoin future use of that property because it exceeds the scope of then easement

Question 14

How does the Scope of Easements Maj. Rule prevent misuse?

Answer 14

WALMART DIAGRAM

Majority approach prevents B (dominant tenant) from using his easement on A’s property (servient tenant) to allow everyone shopping at Walmart to use this easement.

Only B can use this easement!!!

If Walmart could use easement all day and all night,
Then dramatically would affect A’s property.

Question 15

Easement by Proscription

Answer 15

A process of acquiring an easement; similar to acquiring title by adverse possession

E.g. – If you continually drive across your neighbor’s land, and the landowner does nothing about it, it is possible, depending on jx, that if you drive across (1) continuously, (2) openly, (3) actually, and (4) under claim of right, then you may have an easement by proscription

Question 16

Requirements for Easement by Proscription

Answer 16

(1) Continuous – uninterrupted for the applicable statutory period
(2) Open and Notorious – owner knows or should have known of the use
(3) Actual – consistent with the use of an easement
(4) Hostile – without owner’s permission; under claim of right

Question 17

How is an Easement by Proscription different from A/P?

Answer 17

Right to use land, not possess land; A/P is right to possess land

Easement by proscription is not exclusive, A/P is exclusive

Question 18

Negative Easement

Answer 18

Entitles the holder to prevent the servient landowner from engaging in otherwise permissible activities on his own land.

E.g. – A owns Whiteacre, which is lake front property; B owns Blackacre, which is separated from the lake by Whiteacre.

If A gives B an easement of light and air that restricts A from building structures that block B’s view of the lake, a negative easement will be created

Question 19

What were the negative easements at Common Law?

Answer 19

1. Blocking light
2. Blocking air
3. Blocking water
4. Undermining foundations

Question 20

How to terminate an Easement? (8)

Answer 20

1. Estoppel
2. Necessity Ends
3. Destruction of servient tenement
4. Release
5. Abandonment
6. Merger
7. Prescription
8. Expiration

Question 21

Profit

Answer 21

A non-possessory property interest entitling its holder the right to enter another’s land and take something that is party of the land (e.g., fish, soil, timber)

Question 22

Exclusive v. Non-Exclusive Profits

Answer 22

Exclusive Profit: gives profit-holder sole right to remove resources (excludes owner of servient estate)

Non-Exclusive Profit: Servient estate owner or third parties may share in resources

Question 23

License

Answer 23

A license is oral or written permission given by the occupant of land allowing the licensee to do some act that would otherwise be trespass

E.g., A gives permission to neighbor B to use A’s pool

License has been created; A is licensor, B is licensee

Question 24

How are licenses different from Easements?

Answer 24

1) Don’t need two parcels of land
2) Revocable
3) Inalienable
4) No SoF Requirements

Question 25

Two exceptions to revocability of licenses

Answer 25

1) A license coupled with an interest is irrevocable

E.g. Right to mine coal or drill for oil, that right to come on and use land is a legal right

2) A license becomes irrevocable under the rules of estoppel

Question 26

Why are licenses not assignable or transferable?

Answer 26

If they were, you could turn around and assign a personal permission to 1,000 members of a gun club

Question 27

What happens if you try to assign or transfer a license?

Answer 27

Automatically revoked

Question 28

Why are there no SoF requirements for licenses?

Answer 28

A License may be oral or written; a license can result from an easement that is invalid under the SoF

E.g., oral grant of a permanent easement between neighbors may result in a license because SoF is not satisfied.