Easements

Question 1

What is an easement?

Answer 1

An easement is a grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land.

Question 2

What are the rights of an easement holder?

Answer 2

An easement holder has the right to use another’s tract of land for a specific purpose, but has no right to possess or enjoy that land.

Question 3

How long does an easement last?

Answer 3

An easement is presumed to be of perpetual duration unless the grant specifically limits the interest.

Question 4

What is an affirmative easement?

Answer 4

An affirmative easement is the right to go onto and do something on servient land (i.e., the land that is imposed upon by the easement).

Most easements are affirmative.

Question 5

What is a negative easement? What are the categories of negative easements?

Answer 5

A negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.

Negative easements are generally recognized in only four categories (“LASS”):
(1) Land

(2) Air
(3) Support
(4) Stream water from an artificial flow

NOTE: A minority of states also allow a negative easement for scenic view.

Question 6

How is a negative easement created?

Answer 6

Negative easements can only be created expressly, by a writing signed by the grantor. There is no natural or automatic right to a negative easement.

Question 7

What is an easement appurtenant? How do you know an easement appurtenant has been created?

Answer 7

An easement is appurtenant when it benefits its holder in his physical use or enjoyment of his own land.

You can spot an easement appurtenant when two parcels of land are involved:
(1) a dominant tenement, which derives the benefit, and

(2) a servient tenement, which bears the burden

Question 8

What is an easement in gross? How do you know an easement in gross has been created?

Answer 8

An easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land.

Here, servient land is burdened, but there is no benefited or dominant tenement (because the easement benefits the holder rather than another parcel).

Question 9

Explain the transferability of an easement appurtenant.

Answer 9

An easement appurtenant passes automatically with transfers of the dominant tenement, regardless of whether it is mentioned in the conveyance.

An easement appurtenant passes automatically with transfers of the servient estate, UNLESS the new owner is a bona fide purchaser without notice of the easement.

An easement appurtenant CANNOT be conveyed apart from the dominant tenement (i.e., they can only be transferred together), except for cases in which the easement is conveyed to the owner of the servient tenement to extinguish the easement.

Question 10

Explain the transferability of an easement in gross.

Answer 10

An easement in gross is not transferable unless it is for commercial purposes.

Question 11

What are the 4 basic methods of creating an easement?

Answer 11

“PING”:
(1) Prescription

(2) Implication
(3) Necessity
(4) Grant

Question 12

What are the requirements for an easement by grant?

Answer 12

Any easement must be memorialized in writing and signed by the holder of the servient tenement unless its duration is brief enough to be outside the coverage of a particular state’s Statute of Frauds. Most commonly, this means that easements for a term of greater than one year must be in writing to be enforceable, and must comply with all the formal requisites of a deed.

Question 13

How are easements by implication created? Is a writing required?

Answer 13

Easements by implication are created by operation of law.

No writing is required. They are an exception to the Statute of Frauds, which would otherwise require these easements to be in writing.

Question 14

An easement may be implied by preexisting use, but there are two limited situations in which preexisting use is not required:

Answer 14

(1) Subdivision plat: when lots are sold in a subdivision with reference to a recorded plat or map that shows streets leading to the lots, buyers of the lots have implied easements to use the streets to access their lots.
(2) Profit à prendre: the holder of a profit à prendre has an implied easement to pass over the surface of the servient land and to use it as reasonably necessary to extract from the servient property its minerals or some product of the servient property (e.g., timber, fish, or game), as specified by the terms of the profit.

Question 15

What is an easement by necessity?

Answer 15

An easement by necessity (another form of easement by implication) will be implied when a landowner conveys a portion of her land with no way out except some part of the grantor’s remaining land. The owner of the servient parcel has the right to locate the easement.

Question 16

What is an easement by prescription? How is one created?

Answer 16

An easement by prescription may be acquired by analogy to adverse possession.

The elements to acquire a prescriptive easement are (“COAH”):
(1) Continuous and uninterrupted use for the given statute’s period

(2) Open and notorious use (i.e., it’s discoverable upon inspection)
(3) Actual use that need not be exclusive, AND
(4) Hostile use (i.e., use without the servient owner’s consent)

NOTE: Permission defeats the acquisition of an easement by prescription because it negates the hostility element.

Question 17

What is an easement by reservation?

Answer 17

An easement by reservation arises when a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose.

NOTE: Under the majority view, an easement can be reserved only for the grantor. An attempt to reserve an easement for anyone else is void.

Question 18

How is the scope of an easement determined?

Answer 18

The scope of an easement is determined by the terms of the grant or the conditions that created it. If there are no specific limitations in the grant, courts assume that an easement was intended to meet both present and future needs of the dominant tenement (so, e.g., an easement may widen to accommodate new, wider cars).

If, however, the dominant parcel is subdivided, the lot owners will not succeed to the easement if to do so would unreasonably overburden the servient estate.

Question 19

If an easement is overused or misused, what may the servient owner do?

Answer 19

The appropriate remedy for the servient owner is an injunction against misuse. Overuse or misuse of an easement DOES NOT terminate the easement.

Question 20

What are the duties of the servient and dominant estates regarding repairs to an easement?

Answer 20

The servient owner generally may use her land in any way she wishes so long as her conduct does not interfere with the easement.

The easement holder has the duty to make repairs to the easement if she is the sole user, but if both the easement holder and the servient owner are users, the court will apportion the repair costs.

Question 21

What are the 8 ways to terminate an easement?

Answer 21

END CRAMP:
(1) Estoppel

(2) Necessity
(3) Destruction
(4) Condemnation
(5) Release
(6) Abandonment
(7) Merger
(8) Prescription

NOTE: An easement may also be terminated under its stated conditions, meaning the original easement grant may specify when or under what conditions the easement will terminate.

Question 22

How may an easement be terminated by estoppel?

Answer 22

An oral expression of an intent to abandon an easement won’t terminate an easement unless it’s also committed to writing (a release) or accompanied by action (abandonment).

But if the servient owner materially changes their position in reasonable reliance on the easement holder’s assurances or representations (e.g., that the easement will no longer be enforced), the easement terminates through estoppel.

Question 23

How may an easement be terminated by necessity?

Answer 23

Easements created by necessity expire as soon as the necessity ends, unless the easement was reduced to an express grant.

Question 24

How may an easement be terminated by destruction?

Answer 24

Destruction of the servient land, other than through willful conduct of the servient owner, will terminate the easement.

Question 25

How may an easement be terminated by condemnation?

Answer 25

Condemnation of the servient estate by governmental eminent domain power will terminate the easement. Courts are split as to whether the easement holders are entitled to compensation.

Question 26

How may an easement be terminated by release?

Answer 26

A release given by the easement holder to the servient land owner will terminate the easement. (Note that this applies even to an easement in gross, which is otherwise inalienable.)

The release has to be in writing to satisfy the Statute of Frauds because it deals with an interest in land.

Question 27

How may an easement be terminated by abandonment?

Answer 27

The easement holder must show by physical action an intent to never use the easement again (e.g., building a structure that blocks access to the easement on an adjoining lot).

Mere nonuse or words are INSUFFICIENT to terminate by abandonment, though oral expressions combined with a long period of nonuse may be sufficient.

Question 28

How may an easement be terminated by merger?

Answer 28

An easement is extinguished when title to the easement and title to the servient land become vested in the same person (because a person doesn’t need an easement over their own land).

So, if the same person acquires ownership of both the easement and the servient estate, those estates merge and the easement is destroyed.

NOTE: Even if the servient estate is divided again (i.e., returned to the pre-merger condition when the easement was still enforceable), the easement is not reinstated.

Question 29

How may an easement be terminated by prescription?

Answer 29

A servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession (“COAH”)

Question 30

How will courts treat party walls and common driveways?

Answer 30

Courts will treat a wall erected partly on the property of each of two adjoining landowners as belonging to each owner to the extent it rests upon their land.

Courts will also imply mutual cross-easements of support, with the result that each party can use the wall or driveway and neither can unilaterally destroy it.

Question 31

How may a party wall or common driveway be created?

Answer 31

A written agreement is required by the Statute of Frauds for the express creation of a party wall or common driveway agreement, but an “irrevocable license” can arise from detrimental reliance on a parol agreement.

Party walls and common driveways can also result from implication or prescription.

Question 32

Do party walls and common driveways run with the land?

Answer 32

If party wall or common driveway owners agree to be mutually responsible for maintaining the wall or driveway, the burdens and benefits of those promises (which are deemed covenants) run to the successive owners of each parcel.