Easements Flashcards
Definition of an Easement
(1) Create a non-possessory right to enter and use the land in possession of another; and
(2) Obligates the possessor not to interfere with the uses authorized by the easement
Easement Appurtenant
- Servient estate
- Dominant estate
- automatically transferred with the transfer of the servient or dominant estate
- Preferred if ambiguity exists
Easement In Gross
-Servient Estate
-Benefit is held by an individual, not the land
-Benefit is not transferrable unless it is a commercial easement in gross
+personal easements are not freely transferrable
SOF
- Easements are interest in real property and therefore subject to the SOF. They are generally created expressly in writing. Under the SOF, the easement writing must:
(1) identify the grantee/grantor
(2) contain words manifesting intention to create easement
(3) describe the affected land
(4) signed by grantor
Express Easement Types
(1) By Grant: grantor directly conveys an easement to another person
(2) By reservation: grantor conveys land to another, but grantor retains (or reserves) an easement in that land
Exceptions to Statute of Frauds for Easements
(1) Easement by Estoppel
(2) Implied Easement by Prior Use
(3) Implied Easement by Necessity
(4) Prescriptive Easement
License
Informal permission that allows licensee to use land of another for narrow purpose
Profit A Prendre
(1) an easement
(2) that confers the right to enter and remove timber, minerals, oil, gas, game, or other substance.
(3) from land in possession of another
Easement by Estoppel
(1) A license (typically for access purposes)
(2) The licensee’s reasonable reliance on that license (the expenditure of substantial money or labor); and
(3) the licensor’s knowledge or reasonable expectation that reliance will occur
* not all jurisdictions permit
* *available in Texas
Prescriptive Easement
(1) Actual Use of the Land
(2) Adverse
-In Texas: when the owner of the
servient estate is using the land
for same purposes as the person
who claims the perscriptive
easement, the use is presumed to
be permissive, such that the
adverse element is not satisfied
-Majority: presume no permission
-Minority: presume with
permission
(3) Open and notorious
(4) Exclusive
(5) Continous and Uninterrupted
(6) For statutory period
-Varies: Texas 10 Years
Implied Easement by Prior Use
(1) Commonly owned land is severed (dominant and servient estates were once owned by a single individual)
(2) A quasi-easement during the time of common ownership (use was apparent and continuous common ownership)
AND
(3) The continued use is necessary for the enjoyment of the now dominant estate (Majority: reasonable necessity)
Implied grants vs. Implied Reservations
Although some jurisdictions treat the two as the same, some make it harder to establish an implied reservation.
Majority: Reasonable necessity Minority (Tx): -Implied in favor of the grantee (granted): reasonable necessity -Implied in favor of the grantor (reserved): strict necessity
Implied by Necessity
(1) Unity of ownership prior to severance
(2) Access must be strict necessity and not a mere convenience; AND
(3) Necessity must exist at the time of severance of the two estates
* Easement by necessity ceases to exist when no longer necessary
Scope of Easements
Default rule: manner, frequency, and intensity of use of easement may change over time so long as change in scope does not unreasonably interfere with enjoyment of servient estate -If express easement, scope can be limited in writing -If prescriptive: cannot change -Most jurisdictions: if it involves physical intrusion, it is not permitted
Means of Terminating Easements
(1) No Notice / Bona Fide Purchaser
(2) Express Provision
(3) Limitation or condition
(4) Release
(5) Estoppel
(6) Merger
(7) End of Necessity
-Only to implied easements by
necessity
(8) Prescription
(9) Abandonment
-Intent and non-use
