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
