Easements

Question 1

What is an easement

Answer 1

An easement is a grant of a nonpossessory property interest that entitles it holder to some form of use or enjoyment of another’s land.

An easement is presumed to be of perpetual duration unless the grant specifically limits the interest

Question 2

Affirmative Easement

Answer 2

An affirmative easement is the right to go onto and do something on servant land

Question 3

Negative easement

Answer 3

a negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.

Generally recognized in only four categories:

1) light
2) air
3) support
4) stream water from an artificial flow

A minority of states allow for a negative easement for scenic view

Question 4

Creation of a negative easement

Answer 4

Negative easements can only be created expressly, but a writing signed by the grantor. There is no natural or automatic right to a negative easement.

Question 5

Easement Appurtenant

Answer 5

An easement is appurtenant when it benefits its holder in his physical use or enjoyment of his own land. This means that an easement appurtenant requires:

1) a dominant tenament (one that derives the benefit); and
2) a servient tenament (one with the burden)

Question 6

Easement in Gross

Answer 6

An easement in gross is one that confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land.

This means that there is no dominant tenament, only a servient tenament

Examples:
– Right to place a billboard on someone’s land
– right to swim in another’s pool
– utility company’s right to lay power lines on another’s lot

Question 7

Transfer of Easement Appurtenant

Answer 7

The appurtenant easement passes automatically with transfers of the dominant tenement, regardless of whether it is mentioned in the conveyance.

The burden of the easement appurtenant passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice of the easement.

Question 8

Transfer of an Easement in Gross

Answer 8

An easement in gross is not transferable unless it is for commercial purposes

Question 9

What are the basic ways to create an easement

Answer 9

PING

Prescription
Implication
Necessity
Grant

Question 10

Creation by Grant

Answer 10

Any easement must be memorialized in writing and signed by the holder of the servient tenement unless its duration is brief enough to be outside the statute of frauds.

Therefore, easements that endure more than one year must be in a writing to be enforceable. The writing must comply with all formal requirements of a deed.

Question 11

Creation by Implication

Answer 11

Easements by implication are created by operation of law and are exceptions to the statute of frauds.

Preexisting Use (quasi easement) - this applies when land is divided. For there to be an easement by preexisting use, the court must find:

1) the previous (prior to division) use on the servient part was apparent and continuous; and
2) the parties expected that the use would survive division because it is reasonably necessary to the dominant tenement’s use and enjoyment

Question 12

Creation by Necessity

Answer 12

An easement by necessity will be implied when a landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land.

The owner of the servient parcel has the right to locate the easement

Question 13

GA Easement by Necessity

Answer 13

The superior court has jurisdiction to grant rights of ways over the land of others to person who own real estate (or an interest therein) when there are no other means of access to that property.

such an easement is not to exceed 20 feet in width. The person seeking the easement petitions the superior court for a judgment of condemnation. A prevailing petitioner must compensate the other owner and has a duty to maintain the private way.

Question 14

Creation by Prescription

Answer 14

An easement may be acquired by a method similar to adverse possession. To create the person must

1) have continuous and uninterrupted use for the given period
2) open and notorious use
3) actual use (NEED NOT BE EXCLUSIVE)
4) Hostile use

Permission defeats the acquisition of an easement by prescription and they generally cannot be obtained on public land

Question 15

GA Prescriptive Easement

Answer 15

In GA, a prescriptive easement in improved land can be acquired by 7 years of uninterrupted use.

to acquire a prescriptive easement in wild lands, the use must last 20 years.

Question 16

GA Sale of House - Light and Air

Answer 16

When a person sells a house, and the light necessary for reasonable enjoyment of that house is derived from and across adjoining land belonging to the grantor, an easement of light and air over the vacant lot passes as an incident to the house sold.

Question 17

Easement by Express Reservation

Answer 17

This occurs when a grantor conveys title to land but reserves the right to continue to use the land for a special purpose. Under the majority view, the easement can only be reserved in favor of the grantor (not a third person)

Question 18

Scope of an Easement

Answer 18

The scope of an easement is determine by the terms of the grant or the conditions that created it.

If an easement is created but not sufficiently located, the owner of the servient tenement may select the location so long as their selection is reasonable.

If the dominant tenement overuses or misuses an easement, such action does not terminate the easement. The appropriate remedy for the servient owner is an injunction.

Question 19

How can an easement be terminated (highly tested)

Answer 19

There are eight ways to terminate an easement - END CRAMP

E - Estoppel
N - Necessity
D - Destruction

C - Condemnation
R - Release
A - Abandonment
M - Merger
P - Prescription

Question 20

Termination by Estoppel

Answer 20

An oral expression of intent to abandon an easement won’t terminate an easement unless its also in writing or accompanied by action.

However, if the servient owner materially changes their position in reasonable reliance on the easement holder’s assurances or representations, the easement terminates through estoppel.

Question 21

Termination by Necessity

Answer 21

Easements created by necessity terminate as soon as the necessity is lifted, unless the easement was reduced to an express grant

Question 22

Termination by Destruction

Answer 22

Destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement

Question 23

Termination by Condemnation

Answer 23

Condemnation of the servient estate by government eminent domain will terminate the easement.

Question 24

Termination by Release

Answer 24

A release IN WRITING by the easement holder to the servient land owner will terminate the easement

Question 25

Termination by Abandonment

Answer 25

an easement may be abandoned if physical action shows an intent to never use the easement again. Mere nonuse or words are insufficient to terminate by abandonment (must have action)

Question 26

GA Termination by Abandonment

Answer 26

An easement may be terminated by abandonment by nonuse if the nonuse continues for a time sufficient to raise a presumption of release or abandonment. The amount of time generally follows the period of prescription.

However, this is generally limited to easements by prescription. Easement by grant cannot be extinguished by mere nonuse (unless nonuse is for more than 20 years which raises a presumption of abandonment)

Question 27

Termination by Merger (unity of ownership)

Answer 27

An easement is terminated when title to the easement and title to the servient land become vested in the same person.

Upon a later division, the previous easement is not automatically reinstated.

Question 28

Termination by Prescription

Answer 28

A servient owner may extinguish an easement by interfering with its use in accordance with the elements of adverse possession

– Continuous
– open and notorious
– actual
– hostile

Question 29

License

Answer 29

A license is a mere privilege to enter another’s land for some purpose. Unlike an easement, a license is not an interest in land.

It provides a mere privilege, revocable at will of the licensor.

A license is personal to the licensee and thus inalienable - any attempt to transfer results in a revocation of the license

NOTE - a writing is not required for the creation because it is not an interest in land (failed attempts to create an easement results in a license)

Question 30

Revocation of License

Answer 30

Licenses are freely revocable, at the will or the licensor, unless estoppel applies.

Classic license cases to look for:

1) Tickets to events
2) neighbors talking at a fence (looks like an oral easement)

Question 31

Estoppel for License

Answer 31

Estoppel will bar revocation only when the licensee has invested substantial money or labor or both in reasonable reliance on the continuation of the license.

The license becomes an easement by estoppel, which continues until the holder receives sufficient benefit to reimburse them for the expenditures.

Question 32

GA License by Estoppel (Important)

Answer 32

an oral license is revocable if such revocation does not harm the licensee

an oral license is irrevocable when the licensee has acted pursuant to it and incurred expense by, for example, erecting valuable and necessary improvements.

IMPORTANT - in such a case, the license becomes an easement running with the land.

Question 33

The Profit

Answer 33

The profit entitles its holder to enter the servient land and take from it some resources or some product of the property

The rules of creation, alienation, and termination is the same as easements.

However, a profit may be extinguished through surcharge - misuse that overly burdens the servient land