Easements Flashcards
Easement
An easement is a grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land.
Types of Easements
Easements are Affirmative or Negative
Affirmative - the right to go onto and do something on servient land.
Negative - entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.
Recognizing a Negative Easement
LASS
Light
Air
Support
Stream water from an artificial
Creating a Negative Easement
Negative easements can only be created expressly, by a writing signed by the grantor. There is no natural or automatic right to a negative easement.
Easement Appurtenant
Two parcels must be present
An easement is appurtenant when it benefits its holder in his physical use or enjoyment of his own land.
Two parcels of land must be involved:
- a dominant tenement, which derives the benefit, and
- a servient tenement, which bears the burden
Easement in Gross
An easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land.
Servient land is burdened. However, there is no benefited or dominant tenement - because the easement benefits the holder rather than another parcel.
Examples of Easement in Gross:
- the right to place a billboard on another’s land
- The right to swim in another’s pond
- The utility company’s right to lay power lines on another’s lot.
Transferability - Easement Appurtanent
Easement Appurtenant passes automatically with transfers of the dominant tenement, regardless of whether it is even mentioned in the conveyance.
The burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice of the easement.
Transferability - Easement in Gross
An easement in gross is not transferrable unless it is for commercial purposes
Creating an Easement
PING
P - prescription
I - Implication: pre-existing use/quasi-easement
N - Necessity
G - Grant: signed writing (unless outside of SOF
Easement Implied from pre-existing use
Quasi-Easement
Easement by Necessity
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.
Easement by Prescription
An easement may be acquired by analogy to adverse possession. For elements to acquire a prescriptive easement, remember COAH:
C - continuous and uninterrupted use for the given statute’s period
O - Open and Notorious use
A - Actual use that need not be exclusive
H - Hostile use (meaning without the servient owner’s consent)
Generally, prescriptive easements cannot be acquired in public land.
Scope of Easement
the scope of the easement is determined by the terms of the grant or the conditions that created it.
Termination of an Easement
END CRAMP
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
Estoppel
An oral expression of an intent to abandon an easement won’t terminate an easement unless it’s also committed to writing ( a release) or accompanied by action (abandonment).
But if a servient owner materially changes their position in reasonable reliance on the easement holder’s assurances or representations (such as that the easement will no longer be enforced), the easement terminates through estoppel.
