Easements

Question 1

what is an easement?

Answer 1

a grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another’s land

Question 2

what is the presumed duration of an easement?

Answer 2

perpetual unless the grant specifically limits the interest

Question 3

what is an affirmative easement?

Answer 3

the right to go onto and do something on servient land

Question 4

what is servient land?

Answer 4

land that is imposed upon by the easement

Question 5

what is a negative easement?

Answer 5

an easement that entitles its holder to prevent the servient landowner from doing something on their parcel that would otherwise be permissible

Question 6

what are the 4 categories of negative easements? (LASS)

Answer 6

(LASS)
1) light
2) air
3) support (underground, etc)
4) stream water from an artificial flow (access)

Question 7

what do a minority of states allow a negative easement for (in addition to LASS)?

Answer 7

for a scenic view

Question 8

how are negative easements created?

Answer 8

can only be created by express writing signed by the grantor (no natural/auto right to a negative easement)

Question 9

what is an easement appurtenant?

Answer 9

an easement that benefits its holder in his physical use or enjoyment of his OWN land

Question 10

what TWO parcels of land must be involved to be an easement appurtenant?

Answer 10

1) dominant tenement = parcel that derives the benefit
2) servient tenement = parcel that bears the burden

Question 11

what is an easement in gross?

Answer 11

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

Question 12

what ONE parcel of land must be involved to be an easement in gross?

Answer 12

only the SERVIENT (burdened) land

Question 13

does an easement in gross require a benefited/dominant tenement?

Answer 13

NO (because easement benefits the holder – NOT another parcel)

Question 14

what happens to an easement appurtenant when the DOMINANT tenement is transferred?

Answer 14

EA passes AUTOMATICALLY with transfers of the dominant tenement (REGARDLESS of whether it’s mentioned in the conveyance)

Question 15

what happens to an easement appurtenant when the SERVIENT tenement is transferred?

Answer 15

EA passes AUTOMATICALLY with transfers of servient tenement UNLESS…
1) new owner is a BFP, and
2) had NO notice of the easement

Question 16

what is the transferability of an easement in gross?

Answer 16

NOT transferable unless its for some commercial purpose

Question 17

in what ways can an easement be created? (PING)

Answer 17

(PING)
1) Prescription (adverse possession elements)
2) Implication (preexisting use/quasi-easement)
3) Necessity
4) Grant (signed writing)

Question 18

what is required for an easement created by grant?

Answer 18

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)

Question 19

what are the two elements for an easement implied from pre-existing use?

Answer 19

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

Question 20

when will an easement by necessity be implied?

Answer 20

when a landowner conveys a portion of her land with NO WAY OUT except over some part of the grantor’s remaining land

Question 21

who has the right to locate the easement by necessity?

Answer 21

the owner of the servient parcel

Question 22

how is an easement by prescription acquired?

Answer 22

by analogy to adverse possession (COAH elements)
Continuous and uninterrupted use
Open and notorious use
Actual use
Hostile use

Question 23

how is the scope of an easement determined?

Answer 23

by the terms of the grant OR by the conditions that created it

Question 24

will overuse/misuse of an easement terminate it?

Answer 24

NO (but servient owner can get an injunction against the misuse)

Question 25

what are the 8 ways to terminate an easement? (END CRAMP)

Answer 25

(END CRAMP)
1) Estoppel
2) Necessity
3) Destruction
4) Condemnation
5) Release
6) Abandonment
7) Merger
8) Prescription

Question 26

when will estoppel terminate an easement?

Answer 26

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

Question 27

when will necessity terminate an easement?

Answer 27

when the necessity that created the easement ends (unless reduced to an express grant in writing)

Question 28

what kind of destruction will terminate an easement?

Answer 28

destruction of servient land, other than thru the willful conduct of the servient owner

Question 29

how does condemnation affect an easement?

Answer 29

condemnation of the servient estate by governmental eminent domain power will terminate the easement
**NOTE = unclear if easement holders are entitled to compensation

Question 30

when will release terminate an easement?

Answer 30

when a release (in writing) is given by the easement holder to the servient land owner

Question 31

what must an easement holder show to terminate an easement by abandonment?

Answer 31

physical action that represents an intent to never use the easement again

Question 32

what will NOT terminate an easement via abandonment?

Answer 32

mere non use or mere words (BUT may create grounds for estoppel)

Question 33

how does merger terminate an easement?

Answer 33

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)

Question 34

how may a servient owner terminate an easement by prescription?

Answer 34

by interfering in accordance with the elements of adverse possession (COAH)