Easements

Question 1

What are the elements for Easement by Necessity? What situation does this arise in?

Answer 1

1. Both estates were formerly one parcel and
2. At the time of severance, the dominant estate became landlocked.

Where the parcel is landlocked and the owners of the landlocked parcel need a way to access their land. (e.g. access to a road).

Question 2

What is a negative easement?

Answer 2

The right to prevent someone from doing something on their land. Prevents the owner of the servient parcel from doing something.

Question 3

How can an easement by necessity be terminated?

Answer 3

An easement created by necessity expires as soon as the necessity ends unless the easement was created by express grant.

Question 4

What is an affirmative easement?

Answer 4

Right to engage (do something) on the servient parcel. Formally gives people the right to cross the property.

Question 5

How is an Affirmative Easement be created?

Answer 5

Grant: A consensual grant of the easement by the owner.

Necessity: An easement created by necessity because there is no alternative to the easement.

Prescription: By satisfying the elements of Adverse Possession for the statutory period.

Question 6

What is an easement?

Answer 6

The grant of an irrevocable non-possessory property interest in the land for a limited purpose.

Question 7

How can an easement be terminated by ‘destruction’?

Answer 7

Destruction of the servient parcel will terminate the easement unless it was destroyed through the willful conduct of the servient owner.

Question 8

How can an easement be terminated by condemnation?

Answer 8

An easement is terminated when condemnation of the servient parcel occurs through governmental eminent domain power.

Question 9

How can an easement be terminated by release (writing)?

Answer 9

An easement can be terminated by the easement holder giving the servient landowner a written release. This is the most customary way to end an easement.

Question 10

How can an easement be terminated through abandonment?

Answer 10

An easement can be terminated through abandonment if the easement holder demonstrates, through physical action, the intent to never make use of the easement again.
or
Dominant estate stops using easement for statutory amount of time.

Question 11

What is an appurtenant easement?

Answer 11

An appurtenant easement benefits a parcel of land and requires two parcels (dominant parcels that benefits from the easement and a servient parcel that is burdened by the easement).

Question 12

True or False: The benefits of an Appurtenant Easement run with the land?

Answer 12

True: An appurtenant easement benefits a parcel of land and the benefits run with the land.

Question 13

The right to use a private road to access a public highway because there is no alternative method of reaching the highway.

What type of Easement is this?

Answer 13

Affirmative easement.

Question 14

What are the examples of Negative Easements?

Answer 14

Light, Air, Lateral Support, and Streamwater.

Minority of states recognize a 5th category: right to a scenic view.

Question 15

What are the ways you can terminate an Affirmative easement?

Answer 15

END CRAMP

Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription

Question 16

Can an Easement in Gross be subdivided or transferred?

Answer 16

Yes. Generally, they are non-transferrable outside of commercial purposes. But, if the grantor does not retain rights in the Easement (exclusive) then Grantees can subdivide and sell rights to others.

Question 17

What are the two types of In-Gross Easements?

Answer 17

Exclusive and Non-Exclusive.

Exclusive: The Grantor doesn’t retain rights in the Easement so Grantees can subdivide and sell rights to others.

Non-Exclusive: Grantor retains rights in the Easement so Grantees CAN’T subdivide and sell rights to others.

Question 18

What is an Exclusive In-Gross Easement?

Answer 18

The Grantor doesn’t retain rights in the Easement so Grantees can subdivide and sell rights to others.

Question 19

What is an Non-Exclusive In-Gross Easement?

Answer 19

Grantor retains rights in the Easement so Grantees CAN’T subdivide and sell rights to others.

Question 20

How is an Easement terminated through the Merger Doctrine?

Answer 20

If the title to easement and title to the servient parcel become vested in the same person, the easement is terminated. One party takes ownership of both parcels, no easement needed anymore. When servient & dominant sell to each other (become 1).

Question 21

How can an Easement be terminated through Prescription?

Answer 21

Owner of servient parcel cuts off use of easement for statutory period. An easement can be terminated when the servient owner interferes with it in accordance with the elements of adverse possession.

Question 22

What is the difference between and Easement and a License?

Answer 22

An easement is irrevocable; a license is revocable.

Question 23

What is an In-Gross Easement?

Answer 23

An easement that benefits a person or entity. It is not tied to land and only requires a servient parcel.

Question 24

How can an Easement be terminated by Estoppel?

Answer 24

An easement can be terminated by estoppel when the servient owner materially changes their position in reasonable reliance on the easement holder’s assurances that the easement will no longer be enforced.

Question 25

What is the right to lateral support?

Answer 25

Each neighbor is obligated to maintain lateral support for neighboring land. Uphill owner is owed duty to maintain by downhill owner – Negative easement. Downhill owner is strictly liable for damages to neighboring land (not damage to structure)

An uphill property is frequently owed “lateral support” or a retaining wall by the downhill prop owner who could otherwise cut away the soil & altered the natural slope.

Question 26

What are the elements of an Express Easement?

Answer 26

1. Writing (SOF) - must be in writing.
2. Notice - Servient Estate must have notice. (Actual, Inquiry, or Constructive).
3. Intent - Courts look to intent of original parties (to decide appurtenant or in-gross).

Question 27

What are the 3 types of notice that will satisfy the notice requirement of an Express Easement?

Answer 27

Actual, Inquiry, Constructive.

Question 28

What is Constructive Notice?

Answer 28

It’s on record somewhere - the deed is usually recorded in county registry.

Question 29

What is Actual Notice?

Answer 29

Usually in writing or verbal. Where the servient parcel is actually been notified.

Question 30

What is inquiry notice?

Answer 30

Visible signs of use by non-owners to make a reasonable buyer do further investigation.

Question 31

How is an easement distinguished from appurtenant or in-gross?

Answer 31

The intent of the servient estate owner. If ambiguous, use parole evidence. Some states have a presumption of appurtenant.

Question 32

True or False: An owner may take the easement with them when they sell the land?

Answer 32

False: Owner cannot take the easement when they sell the land.

Question 33

When may the owner of a servient estate change the location of an easement?

Answer 33

When they have consent from the easement owner (dominant estate).

Question 34

Can the dominant estate improve the easement?

Answer 34

Yes. The dominant estate may improve the easement unless doing so causes undue burden on servient estate.

Question 35

What is the scope of an express easement?

Answer 35

The scope of an express easement is limited to the scope as defined in the deed. (Can’t enlarge it.)

Question 36

How can an easement be terminated by a ‘marketable title act’?

Answer 36

Some jdx require owners to re-record or register easement periodically, otherwise rights will vanish.

Question 37

Under what conditions may a servient estate owner change the location of an express easement?

Answer 37

With consent of the dominant estate, at their own expense, as long as it does not harm the easement holders use.

Question 38

When can an Easement holder improve the easement?

Answer 38

An Easement holder may improve the easement unless doing so causes unreasonable burden to servient estate

Question 39

What is a license?

Answer 39

Permission by the owner to cross the owners property. Always revocable until it ripens.

Question 40

What does it mean when a license ripens?

Answer 40

A license ripens into an easement and can create and Easement by Estoppel.

Question 41

What are the elements of an Easement by Estoppel?

Answer 41

(1) Permission or license from owner to use land
(2) It was foreseeable that the owner would substantially change position believing permission would not be revoked
(3) User substantially changed permission in reasonable reliance on the permission
(4) Injustice can only be avoided by recognizing easement

Question 42

Which easement is an exception to the Statute of Frauds?

Answer 42

An Easement by Estoppel because it is a license that ripens into an easement.

Question 43

What are the implied affirmative Easements?

Answer 43

Prescriptive Easements
Easements by Estoppel (also Constructive Trusts).
Easements by Prior use
Easements by Necessity

Question 44

What is a Prescriptive Easement?

Answer 44

The same thing as Adverse Possession except replace “possession” with “use”. Adverse Use.

Question 45

What are the elements of Prescriptive Easement?

Answer 45

The same as Adverse Possession, except “use” instead of “possession”.Doesn’t need to be exclusive.

1. Actual USE
2. Open/Notorious
3. Adverse/Hostile
4. Continuous
5. For the statutory period.

Question 46

For prescriptive easements, in a majority of states, is there a presumption of non-permissive use?

Answer 46

Yes. Most States presume there is an absence of permission (satisfying the “hostility” element) if the other elements are met.

Question 47

What are the elements of an Easement by Prior Use?

Answer 47

(1) 2 parcels previously owned by common grantor
(2) The rights in question were asserted prior to the severance of the estate & weren’t temporary
(3) The use or right in question was apparent, obvious, continuous, & permanent
(4) The use or right is reasonably necessary, beneficial or convenient to the use & enjoyment of the dominant the estate
Note: elastic requirement— the more obvious the use, the more lax the necessity test