Easements Flashcards
what is an easement?
a grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another’s land
what is the presumed duration of an easement?
perpetual unless the grant specifically limits the interest
what is an affirmative easement?
the right to go onto and do something on servient land
what is servient land?
land that is imposed upon by the easement
what is a negative easement?
an easement that entitles its holder to prevent the servient landowner from doing something on their parcel that would otherwise be permissible
what are the 4 categories of negative easements? (LASS)
(LASS)
1) light
2) air
3) support (underground, etc)
4) stream water from an artificial flow (access)
what do a minority of states allow a negative easement for (in addition to LASS)?
for a scenic view
how are negative easements created?
can only be created by express writing signed by the grantor (no natural/auto right to a negative easement)
what is an easement appurtenant?
an easement that benefits its holder in his physical use or enjoyment of his OWN land
what TWO parcels of land must be involved to be an easement appurtenant?
1) dominant tenement = parcel that derives the benefit
2) servient tenement = parcel that bears the burden
what is an easement in gross?
an easement that confers upon its holder only some personal or pecuniary advantage that is NOT related to their use/enjoyment of their land
** EXAMPLES = right to place a billboard on another’s lot, right to swim in another’s pond, utility company’s right to lay power lines on another’s lot
what ONE parcel of land must be involved to be an easement in gross?
only the SERVIENT (burdened) land
does an easement in gross require a benefited/dominant tenement?
NO (because easement benefits the holder – NOT another parcel)
what happens to an easement appurtenant when the DOMINANT tenement is transferred?
EA passes AUTOMATICALLY with transfers of the dominant tenement (REGARDLESS of whether it’s mentioned in the conveyance)
what happens to an easement appurtenant when the SERVIENT tenement is transferred?
EA passes AUTOMATICALLY with transfers of servient tenement UNLESS…
1) new owner is a BFP, and
2) had NO notice of the easement
what is the transferability of an easement in gross?
NOT transferable unless its for some commercial purpose
in what ways can an easement be created? (PING)
(PING)
1) Prescription (adverse possession elements)
2) Implication (preexisting use/quasi-easement)
3) Necessity
4) Grant (signed writing)
what is required for an easement created by grant?
must be memorialized in a writing signed by the holder of the servient tenement UNLESS the duration is brief enough to be outside the SoF (one year or less)
what are the two elements for an easement implied from pre-existing use?
1) previous use on the servient land was APPARENT and CONTINUOUS, AND
2) parties EXPECTED that the use would survive b/c it is REASONABLY NECESSARY to dominant tenement’s use and enjoyment
when will an easement by necessity 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
who has the right to locate the easement by necessity?
the owner of the servient parcel
how is an easement by prescription acquired?
by analogy to adverse possession (COAH elements)
Continuous and uninterrupted use
Open and notorious use
Actual use
Hostile use
how is the scope of an easement determined?
by the terms of the grant OR by the conditions that created it
will overuse/misuse of an easement terminate it?
NO (but servient owner can get an injunction against the misuse)
what are the 8 ways to terminate an easement? (END CRAMP)
(END CRAMP)
1) Estoppel
2) Necessity
3) Destruction
4) Condemnation
5) Release
6) Abandonment
7) Merger
8) Prescription
when will estoppel terminate an easement?
when a servient owner materially changes her position in reasonable reliance on the easement holder’s assurances/reps that they will NO LONGER use the easement
when will necessity terminate an easement?
when the necessity that created the easement ends (unless reduced to an express grant in writing)
what kind of destruction will terminate an easement?
destruction of servient land, other than thru the willful conduct of the servient owner
how does condemnation affect an easement?
condemnation of the servient estate by governmental eminent domain power will terminate the easement
**NOTE = unclear if easement holders are entitled to compensation
when will release terminate an easement?
when a release (in writing) is given by the easement holder to the servient land owner
what must an easement holder show to terminate an easement by abandonment?
physical action that represents an intent to never use the easement again
what will NOT terminate an easement via abandonment?
mere non use or mere words (BUT may create grounds for estoppel)
how does merger terminate an easement?
easement is extinguished when title to the easement and title to the servient land are vested in the SAME person (don’t need an easement over their own land)
how may a servient owner terminate an easement by prescription?
by interfering in accordance with the elements of adverse possession (COAH)
