Easements

Question 1

Easement by necessity

Answer 1

An easement by necessity (a form of easement by implication) will be implied when a landowner conveys a portion of their land with no way out except over some part of the grantor’s remaining land. The owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient.

Question 2

Easement by implication

Answer 2

An easement by implication is created by operation of law rather than by written instrument. It is an exception to the Statute of Frauds. An easement is implied if, prior to the time the property is divided, a use exists on the servient part that is reasonably necessary for the enjoyment of the dominant part, and the parties intended the use to continue after division of the property. The use must be continuous and apparent at the time the property is divided. Reasonable necessity is determined by many factors, including the cost and difficulty of alternatives, and whether the price paid reflects the expected continued use. The holder of the easement has a right, even a duty, to make repairs.

Question 3

Easement extinguished by estoppel

Answer 3

Although an oral release from an easement is ineffective because it does not comply with the Statute of Frauds, it may become effective by estoppel. for an easement to be extinguished by estoppel, there must be (i) some conduct or assertion by the owner of the easement, (ii) a reasonable reliance by the owner of the servient tenement, coupled with (iii) a change of position.

Question 4

Affirmative easements and abandonment

Answer 4

An affirmative easement is a nonpossessory right to use someone else’s land. An affirmative easement may be terminated when the easement owner demonstrates, by physical action, the intent to permanently abandon the easement. Mere nonuse is insufficient; it must be combined with other evidence of intent.

Question 5

Easement appurtenant and termination

Answer 5

An easement appurtenant is a nonpossessory right to use someone else’s land in a way that directly benefits the holder in her possession of her own land. An easement is extinguished if the dominant and servient estates become owned by the same person. An easement terminated by unity of ownership will not be revived automatically if the estates are later separated.

Question 6

Prescriptive easement

Answer 6

To establish a prescriptive easement, the possession must be:

1. actual
2. open and notorious,
3. adverse (hostile), and
4. continuous throughout the statutory period.