Easements Flashcards
EASEMENTS
- A grant of a nonpossessory property interest that entitles holder to some form of use/enjoyment of another’s land.
- Holder has right to use another’s land for specified purpose, but no right to possess/enjoy land.
- Easement is presumed to be of perpetual duration unless grant specifically limits interest.
- Common examples of easements include:
(1) Right to lay utility lines on another’s land
(2) Right of way over another’s land
(3) Right to tap into neighbor’s drain
Easements Are Affirmative or Negative
Affirmative
- Most are affirmative: right to go onto & do something on servient land
Negative
- Negative easement: entitles holder to prevent servient landowner from doing something that would otherwise be permissible.
- Negative easements are recognized in 4 categories:
- Remember L A S S :
(1) Light
(2) Air
(3) Support
(4) Stream water from an artificial flow
Creation of a Negative Easement
- Negative easements can only be created expressly (writing signed by grantor).
- No natural/automatic right to negative easement
Appurtenant or in Gross
Easement Appurtenant (def. belonging)
- Easement is appurtenant when it benefits holder’s use/enjoyment of his own land.
- How will you know when you’ve got an easement appurtenant?
- 2 parcels of land must be involved:
(1) dominant tenement: derives benefit
(2) servient tenement: bears burden
Easement in Gross
- Easement is in gross if it gives holder only some personal/ pecuniary advantage that is not related to their use/enjoyment of their land.
- Here, servient land is burdened.
- However, no benefited/dominant tenement (b/c easement benefits holder rather than another parcel).
- Ex:
(1) Right to place billboard on another’s lot
(2) Right to swim in another’s pond
(3) Utility company’s right to lay power lines on another’s lot
TRANSFERABILITY: Easement Appurtenant
- Appurtenant easement passes automatically w/ transfers of dominant tenement, regardless of whether it is even mentioned in conveyance
- Burden of easement appurtenant also passes automatically w/ servient land, unless new owner is (1) bona fide purchaser (2) w/o notice of easement
Tip:
It is important to remember that easement appurtenant passes automatically w/ dominant tenement. Don’t be fooled by questions that make you think it must be specifically mentioned in deed. On the flip side, remember that benefit of an easement appurtenant cannot be conveyed apart from dominant tenement. The only exception to that rule is a conveyance of the easement to owner of the servient tenement to extinguish the easement).
Transferability: Easement in Gross
Not transferable unless for commercial purposes.
CREATION
The basic methods of creating an easement can be remembered
by P I N G:
* Prescription
* Implication
* Necessity
* Grant
By Grant
- Any easement must be memorialized in writing & signed by holder of servient tenement unless for less than 1 year
- That writing must comply with all formal requisites of deed.
By Implication
- Easements by implication are created by operation of law; they’re an exception to SOFs (which would otherwise require a writing).
Easement Implied from Preexisting Use
- This is also known as a “quasi-easement.”
Easement Implied Without Any Existing Use
- In two limited situations, easements may be implied w/o preexisting use.
(1) Subdivision Plat
- When lots are sold in a subdivision buyers of lots have implied easements to use streets to access their lots.
(2)Profit à Prendre
- Holder of profit à prendre has implied easement to pass over servient land & to use it as reasonably necessary to extract from servient property as specified by terms of profit.
By Necessity
- Easement by necessity (another form of easement by implication) will be implied when landowner conveys a portion of her land with no way out except over some part of grantor’s remaining land.
- Owner of servient parcel has right to locate easement.
Prescription
- Elements - C O A H:
C: Continuous & uninterrupted use for statute’s period
O: Open & notorious use (discoverable upon inspection)
A: Actual use that need not be exclusive
H: Hostile use (use w/o servient owner’s consent) - Note: Permission defeats easement by prescription.
- Prescriptive easements cannot be acquired in public land.
Additional Method–Express Reservation
- Easement by reservation arises when grantor conveys title to land but reserves right to continue to use tract for special purpose
tip
Watch for fact patterns where grantor reserves easement for someone else. Majority view: easement can be reserved only for grantor. Attempt to reserve easement for anyone else is void.
SCOPE
- Scope of easement is determined by grant terms/ conditions that created it.
- If no specific limitations in grant, cts assume that easement was intended to meet both present & future needs of dominant tenement (ex. an easement may widen to accommodate new, wider cars).
- If dominant parcel is subdivided, lot owners will not succeed to easement if to do so would unreasonably overburden servient estate.
