Easements Flashcards
Servient Estate
Land burdened by the easement
Dominant Estate
Land benefitted by the easement
Affirmative Easement
The holder has the right to do something on someone else’s property.
Negative Easement
The holder has the right to prevent someone from doing something on her land.
Easement Appurtenant
The easement is tied to the use of the land.
Easement in Gross
The easement benefits the holder personally (there is NO dominant estate, only a servient estate).
Express Easements
An express easements is subject to the SOF, so it must be in writing.
It can be created by a grant or a reservation. An easement by reservation is created when a grantor conveys land but reserves an easement right in the land for the grantor’s use and benefit.
Note: Express easements are subject to recording statutes!
A negative easement MUST be express; it cannot be created by implication.
Implied Easements
Implied easements are informal and arise out of factual circumstances.
They are transferable.
They are NOT subject to the SOF.
They are not subject to recording statutes, unless the subsequent purchaser had notice of the easement.
Four Types of Implied Easements
1) Easement by Necessity
2) Easement by Implication (easement by prior use)
3) Easement by Prescription (adverse possession)
4) Easement by Estoppel
Implied Easement by Necessity
An easement by necessity is created only when property is virtually useless (eg, when the property is landlocked; there is no road or access without cross another’s land)
Conditions that must be met:
- common ownership: dominant and servient estates were owned in common by one person; and
- necessity at severance: when the estates were severed into two separate estates, one of the properties became virtually useless without an easement
Ends when it is no longer necessary
Implied Easement by Implication
An easement by implication is created by an existing use on a property
Conditions that must be met:
1) common ownership: a large estate owned by one owner
2) before severance: the owner of the large tract uses the land as if there’s an easement on it (called a quasi-easement - it’s quasi because the owner can’t have an easement over her own land)
3) after severance: use must be continuous and apparent at the time of severance
4) necessity: use must be reasonably necessary to the dominant estate’s use and enjoyment
Implied Easement by Prescription
It’s like acquiring an easement by adverse possession
Uses the same elements as adverse possession, but no “exclusivity” element for easements
Implied Easement by Estoppel
Starts with a permissive use (eg, the first neighbor permits the second neighbor to use her land). This is a license.
Continues when the second neighbor relies on the first neighbor’s promise.
- Reliance must be reasonable and in good faith
- Look for facts where the second neighbor invested money in reliance on the first neighbor’s promise (eg, made improvements to the easement)
Finally, the first neighbor withdraws permission.
If reliance was detrimental to the second neighbor, the first neighbor is estopped from withdrawing permission, in effect creating an easement.
Changes in Use of Express Easement
Changes in use of an easement are tested under a reasonableness standard. Presume the parties contemplated both its current use and its future use, which means the future use of an easement must be reasonably foreseeable.
Duty to Maintain the Easement
The owner of the easement has the duty to maintain the property subject to an easement.
Exception: The parties can otherwise contract
Termination of an Easement
Release:
- The owner of the easement expressly releases it
- The release MUST be in writing
Merger:
- An easement is terminated if the owner of the easement acquires fee title to the underlying estate
- The easement merges into the title
Abandonment:
- The owner acts in an affirmative way that shows a clear intent to relinquish the rights
- Requires more than non-use or statements
- Usually need non-use plus an act demonstrating an intent to abandon
Prescription:
- The holder fails to protect against the servient estate owner’s interference for the statutory period
Sale to a Purchaser
Estoppel:
- The servient owner changes position to his detriment in reliance on statements or conduct off the easement holder that the easement is abandoned
End of Necessity:
- An easement by necessity lasts as long as the easement is needed. If it is no longer necessary, the easement ends.
Profit
Right to enter another’;s land and remove a specific natural resource (eg, oil, gas, timber)
Profits CANNOT be created by necessity
Side Note: The “one stock” rule applies to the division of a profit. Under this rule, the transferees are limited to the amount of material taken by the transferor, and this quantity is divided up any the transferees taking the profit.
License
A revocable permission to use another’s land (eg, a ticket to a sporting event, the permission you give to a plumber to come into your house)
*Remember: easements are not revocable, but licenses ARE revocable!
*Remember: easements binds successors, whereas a license only binds the licensor
