Easements Flashcards
Easement Definition
Right held by one person to make use of another person’s land.
Servient Estate
Land burdened by the easement
Dominate Estate
Land benefited by the easement
Affirmative Easement
The holder has the right to od something on someone else’s property
Negative Easement
The holder has the right to prevent someone form doing something on their land.
MUST BE EXPRESS!
Easement Appurtenant
The easement is tied to the use of the land
Key word: USE! Not to do… use.
Easement in Gross
The easement benefits the holder personally
Note: there is no dominate estate, just servient estate.
Pool example
Creating Easement Methods
Express or implied
Express Easement
Subject to SOF - must be in writing
Can be given by grant or reservation
SUBJECT TO RECORDING STATUTES!
Easement by reservation
Is created when a grantor conveys land but reserves an easement right in the land for the grantor’s use and benefit.
Implied easement characteristics
- Informal, rise out of factual circumstances
- Transferable
- Not subject to SOF
- Not subject to recording statutes unless subsequent purchaser had notice of easement
Kinds of implied easements
- Necessity
- Implication
- Prescription (AP)
- Estoppel
Implied easement by necessity
Created only when property is virtually useless
Example: landlock
Implied easement conditions
- Common ownership: dominant and servant estates were owned common by one person
- Necessity at severance
Common ownership
dominant and servant estates were owned common by one person
Necessity at severance
when the estates were severed into two separate estates, one of the properties became virtually useless without an easement
Not in the strict sense… ends when no longer necessary
Implied easement by implication
An easement by implication is created by an existing use on a property
Implied easement by implicationConditions
- Common ownership: large estate owned by one person
- Before severance: owner of the large estate uses the land as if there’s an easement on it.
- After Severance: use must be continuous and apparent at time of severance
- Necessity: use must be reasonably necessary tot he dominant estate’s use and enjoyment
Implied easement by prescription
Similar to acquiring an easement by adverse possession
Differences: AP is about possession, where easement is about USE. All elements are the same except for exclusivity
Easement by Estoppel
Creation: starts with a permissive use (license)
Reliance: Continues when the second neighbor relies on the first neighbors promise (promise that second neighbor can use the land) - must be reasonable and in good faith (look for facts where second neighbor invested money to rely… improvements)
Permission withdrawn: finally, the first neighbor withdraws
Result: if reliance was detrimental to second neighbor, fist neighbor is estopped frm withdrawing permission, in effect creating an easement.
Scope: ambiguous terms
if the terms are ambiguous, the court considers the intent of the original parties as to the purpose of the easement
Scope: changes in use
Changes in use of an easement are tested under reasonableness standard. Presume the parties contemplated both its current use and its future use, which means the future use of an easement must be reasonably foreseeable
Scope: tresspass
If the use exceeds the scope, it will be considered trespassing
Duty to maintain
The owner of the easement has the duty to maintain (dominate estate holder)
Termination
Release
1. Holder of the easement expressly releases it
2. Release must be in writing
Merger: An easement is terminated if the owner of the easement acquires fee title to the underlying estate. The easement merges into the title.
Abandonment
The owner acts in an affirmative way that shows a clear intent to relinquish the right
Requires more than non-use or a statement
Abandonment of prescription easement
The holder fails to protect against the servient estate owner’s interference for the statutory period
It is the interference of a servient estate owner that is continuous, actual, open, and hostile for a specific period which may cause an easement right to be terminated by prescription, as illustrated in the following example.
Example:Millhouse has an easement to use the path along Lulu’s property. Lulu hates Millhouse and no longer wants him on her property. She puts up a fence to block Millhouse’s access to the path. If the path is blocked for the statutory period, will Millhouse’s easement be terminated?
End of necessity
An easement by necessity lasts as long as the easement is needed. If it is no longer necessary, the easement ends.
