Easements Flashcards
What is an easement?
a non-possessory right to use the land of another person
an interest in land owned by another person, consisting in the right to use or control the land or an area above or below it for a specific limited purpose (such as to cross it for access to a public road
Case rule from mil brook: a grant of an interest in land typically constitutes an easement if it is for some definite period of time
What is servitude?
an encumbrance consisting in a right to the limited use of a piece of land without possession of it; a charge or burden on an estate for another’s benefit
What is a license?
permission or agreement, usually revocable, that it is lawful for the licensee to enter the licensor’s land to do some act that would otherwise be illegal, such as hunting game
Profit a perndre
= a right or privilege to go on another’s land and take away something of value from its soil or from products of its soil (mining, logging, hunting)
What is dominant estate?
land benefitted by the easement
What is servient land?
land burdened by the easement
What is the dominant tenement/land
land that is benefitted from easement
What is the servient land?
it is the land that is burdened by the easement
Who is dominant owner?
the easement holder
Who is the servient owner?
owner of the servient tenement
What are the types of easements?
- express easements
- implied easement by prior existing use
- easement by necessity
- prescriptive easement
- easement by estoppel
What are the two ways that express easements are created?
- express easement by grant –> the servient owner grants the dominant owner an easement to the dominant owner
- Express easement by reservation –> this arises when the dominant owner grants the servient land to the servient owner, but retains use of the easement over that property
What is an appurtenant easement?
An easement that benefits the holder in her use of a specific parcel of land –> seen as attached to dominant estate itself, seen as attached to the dominant estate itself, not to any particular owner of the land
Easement in gross
not connected to holes use of a particular land, rather it is personal to the owner
Affirmative Easement vs. Negative Easement
allows holder to perform an act on the servant land
allows holder to prevent the servient owner from performing the an act on the servient land
What is an implied easement by prior existing use?
An implied easement by prior existing use has 3 elements
1. severance of title to land held in common ownership
2. an existing apparent and continuous use of one parcel for the benefit of another at the time of the severance
3. reasonable necessity for the use
Reasonable necessity: the easement must be beneficial or convenient for the use of the dominant estate, but need not be essential; reasonable necessity usually means that alternative access cannot be obtained without substantial expenditure of money or labor
Emanuel v. Hernandez case law for implied easement by prior existing use
- if an easement implied by prior use did not arise the moment the property was served, a change in circ. after the severance cannot create such an easement
Implied easements by necessity:
Two elements:
1. severance of title to land held in common ownership
2. necessity for the easement at the time of severance
Traditional necessity rule: strict necessity is required –> only when owner has no access to her land.
Modern Majority Rule –> most courts require only reasonable necessity; easement must be beneficial or convenient for the use of the dominant parcel, but not absolutely necessary .
Prescriptive Easement
- Open and notorious
- adverse and hostile (most states presume adversity)
- continuous
- for the statutory period.
What is easement by estoppel?
most courts find easement by estoppel when:
- landowner allows another to use his land, this creating a license
- licensee relies in good faith on the license, usually by making physical improvements or by incurring significant costs; and
- the licensor knows or reasonably should expect such reliance will occur
Scope of easements for express and implied easements:
the law presumes that an easement holder would be entitled to do anything that is reasonably necessary for the full enjoyment of the easement
* Reasonable changes in manner, frequency, or intensity of use to accommodate normal development of the dominant estate are permitted, even if this somewhat increases burden on servient estate
* Easement holder CANNOT change the scope of the easement so as to impose an unreasonable burden on the servient land
Scope of easements for prescriptive easements:
courts are reluctant to permit expansion of a prescriptive easement b/c it has little connection to party intent; presumption that parties intended the easement to expand to meet future needs is not available
Moving Easements Traditional and Minority Rule
Traditional Rule: location of an easement can be changed only if both the servient and dominant owners agree
Minority Rule: servient owner may relocate an easement as long as this does not significantly lessen the utility of the easement, increase the burdens on the easement holder, or frustrate the purpose of the easement
Interpreting intent rule:
contracting parties’ intentions as expressed in the grant determine the scope of the conveyed interest (Marcus Cable v. Krohn)
An easement’s express terms, interpreted according to their generally accepted meaning, delineate the purpose for which the easement holder may use the property
If a particular purpose is not provided for in the grant, a use pursuing that purpose is NOT allowed
