Easements

Question 1

what is an easement

Answer 1

right to use land but no right to posses or enjoy the land (nonpossessory interest/grant)

ex: right to lay utility lines on another’s land, right of way over another’s land, right to tap into a neighbor’s drain

Question 2

list (4)

types of easements

Answer 2

1. affirmative
2. negative
3. appurtenant
4. in gross

Question 3

PING

how is an (affirmative) easement created

Answer 3

1. Prescription - use that is continuous, open, notorious, actual, hostile for statutory period
2. Implication - implied from prior use at time land is severed unless SOF exception
3. Necessity - division of land deprives one lot of means of access and so, easement necessary to address deprivation
4. Grant/express - an express grant of the easement

Question 4

list (3)

requirements to create an express easement

Answer 4

1. in writing
2. signed by servient estate holder
3. satisfies deed formalities (i.e. SOF)

Note: if period puts it outside SOF → then no writing required

Question 5

what is an affirmative easement

Answer 5

right to go onto servient land and do something

Question 6

how long is duration of an easement

Answer 6

perpetual unless specified otherwise

Question 7

what is a negative easement

Answer 7

entitles holder to prevent the servient landowner from doing something on the servient land that would otherwise be permissible (ie building a gravel driveway, negative easement says can only build a dirt driveway)

Question 8

LASS*S*

types of negative easements

Answer 8

1. Land
2. Air
3. Support
4. Stream water from artificial flow
5. minority: Scenic view

Question 9

what is an easement appurtenant

Answer 9

Easement btwn servient tenement (gives the easement) and the dominant tenement (benefits from the easement).

• example roadway to the highway passing thru servient land benefiting the landlocked dominant tenement*
• easement that benefits its holder in physical use or enjoyment of his own land*

Question 10

how do you know if there is an easement appurtenant

Answer 10

1. dominant estate
2. servient estate

Question 11

how many ppl does it take to make an EA? an EIG?

Answer 11

EA: takes two ppl

EIG: takes one

Question 12

what is an easement in gross

Answer 12

servient land is burdened, and NO benefited/dominant land

gives the holder a benefit NOT related to use/enjoyment of land

ex: right to place a billboard on one’s lot, right to swim in another’s pond, utility company’s right to lay power lines on another’s lot

Question 13

transferability of an easement appurtenant

re benefit estate

Answer 13

benefits passes automatically with transfers of dominant land REGARDLESS of whether it is mentioned in conveyance

Question 14

transferability of an easement appurtenant

re servient estate

Answer 14

burden passes automatically with transfers of servient land

UNLESS

new owner is BFP without notice of easement

Question 15

transferability of easement in gross

Answer 15

not transferable unless it is for commercial purposes

Question 16

what is the remedy for overuse or misuse of an easement

Answer 16

injunction

Question 17

END CRAMP

ways to terminate an easement

Answer 17

1. estoppel
2. necessity
3. destruction
4. condemnation
5. release
6. abandonment
7. merger
8. prescription - coah for statutory period

Question 18

If an easement is said to be surcharged, this means

Answer 18

the easement’s legal scope was exceeded and the servient owner may sue to enjoin the use.

(iow: the easement holder uses the easement in a way that exceeds its legal scope)

The scope of an easement is determined by the reasonable intent of the original parties, and when the scope has been specified, these specifics will govern. However, when an easement’s scope has been set out only in general language, courts will interpret it to accommodate the holder’s present and future reasonable needs