Easements

Question 1

What is an easement?

Answer 1

An easement is a grant of a nonpossessory property interest that allows holder to some limited form of use or enjoyment of another’s land. it’s usually limited by purpose and presumed to be of perpetual duration.

E.g., right to lay utility lines, right of way, right to tap into drain

Question 2

In what two ways are easements classified?

Answer 2

Easements can be either (a) affirmative or (b) negative.
a. an affirmative easement gives someone the right to go onto/do something on someone’s land (most common)
b. a negative easement is one that stops someone from doing something on their land, must be expressly stated in signed writing, and only allowed in following categories:
LASS: light, air, support, stream water from an artificial flow

And, easements can be either (a) appurtenant or (b) in gross.

a. an easement is appurtenant if it benefits the holder of the easemement in the use of his own land. dominant tenement = land that gets benefit, servient tenement = one that bears burden. (e.g., A grants easement to B to walk across A land to get to B land)
b. an easement is in gross if it confers advantage onto holder that is merely pecuniary/personal - NOT re enjoyment of their own land (e.g., can lay power lines or place a billboard there)

Question 3

How does an easement appurtenant transfer/ How does an easement in gross transfer?

Answer 3

An easement appurtenant transfers automatically with the benefitting land. It also transfers with the servient land, unless person buys + has no notice of easement.

An easement in gross is NOT transferable unless its is for commercial purposes.

Question 4

What are the 4 ways an easement can be created?

Answer 4

PING:

• prescription - // adverse posession
• implication - implied from preexisting use or subdivision plat/profit a prendre
• necessity - landowner conveys land that could not be accessed without easement
• grant (and express reservation) - in signed writing by servient landowner

Note: SoF requires it be by grant is for longer than a year, BUT easememnt by implication can be found even when SoF applies.

Question 5

What are the two ways easements can be created by implication?

Answer 5

Even if easement falls under SoF, they can still be created by implication when:

• preexisting use (quasi-easement) + was apparent and continuous use + parties expected the use would survive division/sale b/c reasonable necessary for enjoyment of land
• no preexisting use +
  (1) subdivision plat - sold lot in subdivision with streets shown to access, implied right to access streets
  (2) profit a prendre - purpose of lot is to access some resource, have implied right to extract minerals, etc.

Question 6

What elements are required to find an easement created by prescription?

Answer 6

Similar to adverse possession: (COAH)

• continuous + uninterrupted use
• open and notorious use
• actual use that need not be exclusive
• hostile use (permission by servient estate will destroy prescription claim)

Question 7

What is an easement by express reservation? When is it valid?

Answer 7

Easement by express reservation is when grantor conveys land to someone but retains right to continue to use land for some purpose. ONLY valid if right is retained, not passed to third party.

Question 8

What are the duties of the servient and dominant estates?

Answer 8

Servient user has duty not to interfere with easement. Dominant user has duty to repair easement if they are sole user, but use it then they split repair costs.

Question 9

What are the 8 ways to terminate an easement?

Answer 9

Generally, an oral expression to terminate an easement won’t be valid unless accompanied by writing or action (e.g. abandonment). 8 ways to terminated are:
(ENDCRAMP)
- estoppel - if servient owner materially changes position based on oral promise of termination
- necessity - easements created by necessity end when reason for necessity ends
- destruction - servient land destroyed (unless intentional by owner)
- condemnation - of servient estate by govt eminent domain
- release - written release
- abandonment - holder must show intent not to use again by physical action (e.g. holder erects building so they can no longer access) - mere words/nonuse NOT enough
- merger - either user gets full property rights
- prescription - AP, i.e. servient user has continuous interference + open notorious + actual + hostile

+ if easement expressly stated it would end by xyz reasons.

Question 10

Who owns a wall/common driveway in between two lands?

Answer 10

It belongs to each to the extent it rests on their land - each can use and neither can destroy without consent of the other.

Note: SoF requires written agreement to create one. Also, it runs with land.