Easements

Question 1

Easements

Answer 1

Non-possessory (use) interest in land

Question 2

Easements: Affirmative vs. 4 Negative types

Answer 2

Most easements are affirmative

4 types of negative easement: Prohibiting
Blockage of light (express)
Air (express)
Removal of building support
Interference with artificial streams
Conservation easements

Question 3

Easements: 2 Purposes of easements

Answer 3

Appurtenant v. in gross (purpose of easement)

(1) Appurtenant – benefits land (persons in capacity as landowners of dominant parcel); requires dominant and servient land)

(2) In gross – benefits people (in capacity other than as landowners); involves only servient land

– Purpose construed based on intent of parties

Question 4

Easements: Implied Easements Formation Method 1 of 2 (Prior Existing Use 3 Elements)

Answer 4

Implied Easements - Existing prior use
(1) Severance: severance of title to land held in common ownership.

(2) Use: an existing, apparent, and continuous use of one parcel for the benefit of another parcel at time of
severance.

(3) Necessity: “reasonable necessity” for that use at time of severance.

Question 5

Easements: Implied Easements Formation method 2 of 2 (Easement by Necessity 2 Elements)

Answer 5

Easement by necessity
(1) Severance: severance of title to land held
in common ownership.

(2) Necessity:
- Majority view: “reasonable necessity” at time of severance.
- Traditional view: “strict necessity” at
time of severance.

Question 6

Easements: License vs. Easement

Answer 6

■ License is a permission to use land for
particular purpose

■ License v. Easement depends on:
1. Manner in which right created
2. Nature of right created
3. Duration of right
4. Amount of consideration given for
right
5. Whether there is a reservation of
power to revoke right

Question 7

Easements: 5 Types of Easements

Answer 7

2-5 created by operation of law

1. Express easement
2. Easement Implied by prior existing use
3. Easement by necessity
4. Prescriptive easements
5. Easement by Estoppel (or irrevocable
   license)

Question 8

Easements: Express Easements

Answer 8

■ Grant vs. Reservation
– [Issue of “Stranger to the deed” common law rule
(Estate of Thomson)]
– But modern approach (including California) allows
reservation of easement to 3rd parties

■ Easement v. Estate (possessory) vs. License

■ Statute of Frauds applicable

■ Scope – can expand with normal development of the
dominant estate
– Anticipation of change and technological innovation
– Benefit strictly only for dominant parcel (Brown v.
Voss)

■ Easements in Gross
– Usually deemed “personal” to holder and cannot be
conveyed
– But some jurisdictions allow for transfer if commercial
in nature
– Question of Intention of parties

Question 9

Easements: Defining “necessity”

Answer 9

(1) Strict necessity: owner has no legal right of access to her land.

(2) Berge standard: owner lacks “reasonably practical access.”
(3) Reasonable necessity: easement would be beneficial or convenient to owner.

Question 10

Easements: Prescriptive Easements 4 Elements + Scope

Answer 10

■ Required Elements
Claimant’s use must be:
(1) Open and notorious
(2) Adverse and hostile
(3) Continuous
(4) For the statutory period

■ Scope – limited to scope of adverse use that was basis of
creation

Question 11

Easements: Easement by Estoppel/Irrevocable License 4 Elements

Answer 11

1. Owner permits another person to use her land (prior
   permission);
2. Under circumstances where it was reasonable to
   foresee that the user would substantially change
   position in reliance;
   ■ Licensor’s knowledge/reasonable expectation of
   licensee’s reliance, e.g. spending good faith spending $
3. User does substantially change position in reasonable
   reliance; and
4. Injustice can be avoided only by recognizing the
   easement.

Question 12

Easements: 3rd Restatement Consolidation of all Easement rules into Servitude

Answer 12

the holder of an easement…may use in a manner that is reasonably necessary for the convenient enjoyment of the servitude.

The manner, frequency, and intensity of the use may change over time to take advantage of developments in technology and to accommodate normal development of the dominant
estate or enterprise benefited by the servitude

Question 13

Easements: Termination 9 Types

Answer 13

■ Abandonment - 1) Period of nonuse & 2) intent to
abandon (actions/omissions)
■ Prescription – (actually, continuously, adversely, open &
notoriously) prevent easement holder from exercising
rights
■ Recording System – applies
■ Condemnation
■ Estoppel
■ Merger - Easements appurtenant terminate if dominant
and servient estate come into common ownership (unity
of title) and use (unity of possession)
■ Misuse
■ Release (express agreement)
■ Expiration

Question 14

Easements: Abandonment 2 Elements

Answer 14

(1) Period of nonuse
(2) Intent to abandon (acts/omissions)