Easements Flashcards
Generally
A grant of a nonpossessory property interest entitling holder to use/enjoyment of another land
Affirmative: Right to go on to and do somethign on anothers land
Negative: Right to prevent landowner from doing something
Negative easements
Right to prevent landowner from doing something. Generally recognized in only 4 categories:
1) light (access)
2) air (flow)
3) support (erosion)
4) stream water from an artificial flow
Minority 5th: scenic view
Creation of a negative easement
Can ONLY be created expressly
Easements are either held…
appurtenant to land or held in gross
Easement appurtenant
Benefits holder in use/enjoyment of own land
Two parcels of land must be involved:
Dominant parcel dervices burden
SErvient parcel bears burden
Easement in Gross
Confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land.
There is servient land, but no dominant tenement (b/c the easement beenfits the holder rather than another parcel).
Example:
1) right to place a billboard on another’s lot
2) right to swim in anothers pond
3) utility companys right to lay power lines on anothers lot
Transfer of Easemenet Appurtenant
Dominant tenement transfer: automatic regardless of its mention in conveyance.
Servient tenement transfer: Automatic UNLESS new owner is a bonafide purchaser without notice of the easement.
Transfer of easement in gross
Not transferable unless it is for COMMERCIAL PURPOSES.
Affirmative Easement Creation
PING
Prescription
Implication (usually preexisting use)
Necessity
Grant (signed writing UNLESS outside SoF (brief))
Implied Easemenets
Created by operation of law. Exception to SoF requirement.
1) Easemenet Implied from Preexisting Use
2) Easement implied without any existing use
Easement Implied from preexisting use
1) Previous use on the servient part was apparent and contiunious, AND
2) parties expected that hte use would survive division b/c it is reasoanbly necessary to the dominant tenement’s use and enjoyment
Easement by Necessity
Landowner conveys a portion of her land with NO WAY OUT except over some part of the grantor’s remaining land.
Owner of the servient parcel has the right to locate the easement.
Easement by Prescription
Acquired by analogy to adverse possession. ELEMENTS: (COAH)
1) Continious and uninterrupted use (for the given statutory period)
2) Open and notorious
3) Actual use (need not be exclusive)
4) Hostile Use (without servient owners consent)
Generally, cannot be acquired in public land.
Scope of an easement
Set by terms of grantor conditions that created it.
Termination of easements
ENDCRAMP
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
Termination by Estoppel
Servient owner materially changes positions in reliance on expression of an intent to abandon by dominant tenement holder
NOTE: Oral expression of intent wont end easement, but reliance on it will through estoppel
Termination by Necessiry
Ends when needs end
UNLESS the easemenet was reduced to an express grant (writing)
Termination by Destruction
Destructoin of the servient land, other than through the willfull conduct of the servient owner, will terminate the easement.
Termination by COndemnation
Condemnation of S by gov eminent domain power til terminate easement.
Courts split as to whether easement holders are owed compensation.
Termination by Release
By the easement holder (dominant), given to servient land owner. Must be in writing.
Termination by Abandonment
Easement holder shows, by physical action, an intent to never make use of the easement again.
Example: DOM builds structure on parcel that precludes her from ever reaching SERs parcel again.
Mere words, or non use is not suffieint.
Termination by MErger
Title to both parcels become vested in same person.
Termination by Prescription
Servient owner may extinguish the easement by interfering with it in accoradance with the elements of AP— COAH
Continous interference
Open and notorious
Actual
Hostile to the easement holder
If an easement is “surcharged”…
The easements legal scope was exceeded
