Easements Flashcards
Easements
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
Creation of an Easement
1) express
2) by implication
3) by necessity
4) by prescription
5) by estoppel
Creation of Easements
Express Easement
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
Easement by Implication
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 **
Easement by Necessity
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)
Easement by Prescription
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
Easement by Estoppel
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
Scope of an Easement
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).
Transferability of an Easement
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)
Termination of an Easement
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
Termination of an Easement
Release
occurs if parties execute a subsequent writing that complies with SOF that expressly releases right to the easement
Termination
Abandonment
if owner of the right (to easement) 1) intends to terminate easement AND
2) acts in a way to terminate the easement
Termination
Merger
occurs if the title to the parcles of land burdened and benefitted by the easement are acquired by same owner
Termination
Prescription
occurs if holder of the right fails to protect the interest for a statutory period
Termination
Condemnation
occurs if government takes property that is subject to the easement
Termination
Necessity Ends
for easements created by necessity
Termination
Equitable Termination
if enforcement is no longer equitable; applies to easements created by estoppel
Termination
By Estoppel
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
Termination
By Destruction
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.
License to Land
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
SALE OF REAL PROPERTY
Marketability of a Title
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.
