Easements

Question 1

Easements

Answer 1

affirmative: rights to limited use or access
Negative: places restrictions on property
appurtenant: two parcels of property
Gross: granted to benefit a particular person pr entity

Question 2

Creation of an Easement

Answer 2

1) express
2) by implication
3) by necessity
4) by prescription
5) by estoppel

Question 3

Creation of Easements

Express Easement

Answer 3

when servient estate owner 1) expressly grants easement to another
or 2) when property is transfered, the transferor expressly reserves an easement on the property for benefit of the transferor/third party

REQUIRES IN WRITING
1) the parties
2) describes property
3) express grantor intent to create an easement
4) signed by grantor

Question 4

Easement by Implication

Answer 4

when easement is reasonably necessary to acces the domain estate
1) common ownership (prior unity) in 2 parcels of land
2) prior use of land was consistent w easement
3) use was **continuous and apparent at the time of sale of one of the parcels
**4) use is reasonably necessaryf to use and enjoyment of dominant estate **

Question 5

Easement by Necessity

Answer 5

1) common ownership (prior unity) of two parcels of land
2) severance of parcels created the necessity for easement
3) easement is strictly necessary(landlocked)

Question 6

Easement by Prescription

Answer 6

use is:
1) open and notorious
2) hostile
3) continuous
4) for a statuory period

use at the conclusion of prescriptive period establishes the scope of the easement grant

Question 7

Easement by Estoppel

Answer 7

1) there was permission to use servient estate
2) reasonable reliance on the permission to party’s detriment
3) would be equitable to recognize the existance of an easement

*this is an equitable defense

Question 8

Scope of an Easement

Answer 8

is scope is not expressly defined then scope is determiend by:
1) intent of the parties
2) reasonableness of hte use (e.g consider the character and development of property over time).

Question 9

Transferability of an Easement

Answer 9

burden of an easement in gross is always transferred if the burdened property is sold.

modern: courts can look at intent of parties and usually allow commercial easements in gross to transfer.

see: easements appurtenant (w the land)

Question 10

Termination of an Easement

Answer 10

duration of the easement is indefinite unless expressly stated or it is terminated one of 9 ways:
1) release
2) abandonment
3) merger
4) prescription
5) condemnation
6) necessity ends
7) equitable
8) estoppel
9) destruction

Question 11

Termination of an Easement

Release

Answer 11

occurs if parties execute a subsequent writing that complies with SOF that expressly releases right to the easement

Question 12

Termination

Abandonment

Answer 12

if owner of the right (to easement) 1) intends to terminate easement AND
2) acts in a way to terminate the easement

Question 13

Termination

Merger

Answer 13

occurs if the title to the parcles of land burdened and benefitted by the easement are acquired by same owner

Question 14

Termination

Prescription

Answer 14

occurs if holder of the right fails to protect the interest for a statutory period

Question 15

Termination

Condemnation

Answer 15

occurs if government takes property that is subject to the easement

Question 16

Termination

Necessity Ends

Answer 16

for easements created by necessity

Question 17

Termination

Equitable Termination

Answer 17

if enforcement is no longer equitable; applies to easements created by estoppel

Question 18

Termination

By Estoppel

Answer 18

if 1) dominant estate holder makes statements/acts in a way that causes servient estate holder to reasonably belive the easement has been abandoned AND
2) the servient estate holder reasonably relies to his detriment

Question 19

Termination

By Destruction

Answer 19

physical destruction will not normally terminate an easement BUT if an easement is tied to a structure on property and its destroyed by an extraordinary event, easement is then termianted.

Question 20

License to Land

Answer 20

1) not subject to SOF so it can be oral agreement
2) license is personal - only licensor can transfer the license, not licensee

revocable UNLESS; 1) licensor expressly creates intent to make it irrevocable 2) license is coupled w another or there is 3) estoppel

Question 21

SALE OF REAL PROPERTY

Marketability of a Title

Answer 21

implied in every contract for sale of real property unless otherwise stated.

breached when: title is encumbered at time of deed’s delivery(closing), regardless of whether seller knew of encumbrance

if encumbrance exists, buyer may rescind the contract. buyer can waiver right to marketable title.