Easements Flashcards
What is an easement? Give examples.
The right to cross over/use someone else’s property. eg, driveways, roads, billboards, utility lines.
Easements carry the same ownership rights as freeholds/fee simples and rid the original owner of the bundle of sticks. (T/F)
False. Easements do not necessarily have to do with possession of property, they are something that have been given or sold to someone else without giving up the bundle.
Affirmative vs. Negative Easements
Affirmative: gives the easement holder some right to crossover and use the other persons property. eg, rights to cross/use the land
Negative: restrict what the owner of the land can do vis a vis the negative encumbrance. eg, blocking light/air/view
Easement Appurtenant vs. Easement In Gross
Appurtenant: serves or assists owner of a parcel connecting specific parcel of land. Law speaks of land to which easement connects as the dominant dominant estate and speaks of land easement runs as the serviant estate. Transfer with estates over time, runs with the property
In Gross: serves the person who holds the easement but doesn’t necessarily connect another piece of property. Doesn’t speak of dominant estate/servient estate. Tend not to be pathways but instead railroads, utility lines, signage, billboards, etc. Do not transfer with the estate over time. Are considered personal
Mitchell v. Castlelaw and the the ramifications of having one type of easement over the other when talking about whether an easement is understood to be “in gross” or “appurtnenant”
depends on transferability. Easement appurtenant pass automatically with the land. It was important in the Mitchell case because if the easement would have been in gross, the easement would have been gone a long time ago since the land had been transferred multiple times.
How do you know whether an easement exists?
First, look at the language used, no particular words necessary but just something that signals to there being or not being an easement.
Then, when ambiguous language, look at external considerations/surrounding circumstances.
Also, consider trying to figure out what the parties intended.
How does a court determine how an easement is supposed to be used?
Trick question, but not really – it’s the same process courts use to figure out whether an easement exists in the first place.
First look at the language of the agreement, if it doesn’t say or is ambiguous, look at the circumstances
eg, Papke v. Evil Neighbor driveway easement. At the end of the driveway there was a parking slab on Papkes property and a garage on E.N. property. It could be inferred that the driveway is meant to be used to drive on to get to the slab/garage, NOT to park on.
Easements can be made via oral agreement. (T/F)
True. Easements can be made via oral agreement, HOWEVER, the Statute of Frauds would be operative as an easement is real property.
Easements typically come from a document expressly creating the easement.
When does an easement by operation of law occur?
An easement by operation of law occurs when the surrounding circumstances themselves create an easement.
Name the three categories of easements by operation of law discussed in class:
Easement by Necessity; Easement by Implication; Easement by Prescription.
Easement by necessity
Situation in which a property is land locked and the owner of the property needs an easement to reach a particular location
NOTE: Public Policy consideration: do not want properties to become useless which would happen if they were completely landlocked.
Easement by implication
typically begins with a larger parcel of land with no movement across, but the larger parcel is then split up indicated that usage was implied
eg, a trail being formed due to continuous usage across a piece of land
Easement by Prescription
holder of easement interest takes it over and uses it for an open and hostile way for stipulated period of time
There is a general and standard understanding for what courts deem a necessity that constitutes an easement by necessity. (T/F)
False. Different courts in different jurisdictions have different notions of what is necessity. Some courts require absolute necessity, where there is absolutely no way to get to the property. Other courts use something closer to a standard of reasonableness.
What are the ways in which an easement can be terminated? What are the ways an easement can be terminated with regards to easements by operation of law?
Express agreement in which former holder of easement releases it. (i) can be in a deed or another document. (ii) easement agreements can be for specified for a limited period of time. (This can be established at the time of the creation of the easement.)
Easement of necessity: terminated when the necessity ceases to exist.
Easement by Implication: use that was supposedly implied no longer exists
Easement by prescription: terminated when the easement is abandoned (requires an intent to relinquish)
