Easements

Question 1

Easement Def

Answer 1

Right held by one person to make specific, limited use of land owned by
another

Question 2

Express Easement

Answer 2

affirmatively created by parties in writing that satisfies requirements for a
deed; by grant or by reservation

Question 3

Necessity Easement (Implied)

Answer 3

1. Dominant/servient estates must have been under common ownership
2. Necessity must arise when property severed and estates created
3. Property is virtually useless without benefit of easement across adjacent
   property

The ability to create alternative access to a landlocked parcel by purchase of an easement over a neighbor’s land does not defeat the creation of an easement by necessity.

Question 4

Implication Easement (Implied)

Answer 4

1. Dominant/servient estates must have been under common ownership
2. A quasi-easement existed at severance; may also be implied from a
   subdivision map or plat ownership
3. Prior use was continuous, apparent, or known
4. Easement reasonably necessary to dominant estate’s use/enjoyment

Question 5

Prescription Easement

Answer 5

Adv possession analogue ==> OCAN (no E(xclusive) bc inherently shared)

Open and notorious
Continuous
Actual,
Non-permissive

==> for statutory period (e.g., 10 (many
states), 15, or 20 years)

Question 6

Estoppel Easement

Answer 6

Good faith, reasonable, detrimental reliance on permission by servient
estate holder,
==> created to prevent unjust enrichment

Question 7

Negative Easement

Answer 7

prevents owner from using land in specific ways,

must be expressly created by writing signed by grantor, and usually only recognized for light/air/support/stream
water from artificial flow

Question 8

Termination

Answer 8

DAMPER ==> what puts a damper on your easement

Destruction of servient estate = severed by attempt to convey appurtenant easement separate from land it benefits

Abandonment = owner affirmatively acts to show clear intent to abandon right (statements of intent without conduct and mere non-use insufficient to extinguish easement right)

Merger = easement merges into title when owner of dominant or servient estate acquires fee title to the other estate

Prescription

Estoppel

**Release (must satisfy SOF)
**

==> Unrecorded express easement not enforceable against BFP of servient estate

Question 9

Duty to maintain

Answer 9

easement owner has right and duty to maintain the easement;

may seek contribution from co-owners of the easement for the cost of reasonable repairs and maintenance, in proportion to their use

Question 10

Profits (easement-adjacent)

Answer 10

entitles holder to enter servient land and take from it the soil or some substance of the soil such as mineral, timber, and oil;

created and analyzed similarly to easements,

except profits cannot be created by necessity

Question 11

Licenses

Answer 11

• Privilege to enter another’s land
• Freely revocable unless coupled with an interest or estoppel (may result in easement
  by estoppel)
• Does not need to satisfy SoF
• Invalid oral easements may create license

Question 12

Equitable Servitude

Answer 12

Equitable servitudes are agreements about land use that are enforced at equity by injunction. The requirements for enforcement of an equitable servitude are not as stringent as those for enforcement of a real covenant.

a. Requirements

For a servitude to be enforced at equity, it must meet the following requirements:

i) It must be in writing;

ii) There must be intent for the restriction to be enforceable by and against successors;

iii) The servitude must touch and concern the land; and

iv) If the person against whom the servitude is to be enforced is a purchaser, he must have notice (whether actual, record, or inquiry notice) of the servitude.

Regarding the need for a writing (item i, above), there is an exception for an implied reciprocal servitude (see b. Implied reciprocal servitudes, below). The requirement of notice (item iv, above), which is based on the principle that the acquisition of legal title by an innocent purchaser defeats a prior equitable claim, is independent of the effect of the recording act on the enforcement of an equitable servitude.

Question 13

Real Covenant & Equitable Servitude Notice Requirement

Answer 13

A covenant is a promise between parties to do or not do something on land (eg, use the land only for residential use) that is enforceable by an injunction (equitable servitudes) or an action for money damages (real covenants).
==> The promising parties are bound under contract law,

==> successors in interest are bound only if the covenant runs with the land.
==> the successor in interest must have actual, record, or inquiry notice of the restriction.
==> whether the entrepreneur had record (ie, constructive) notice depends on what information a search of land records would reveal.
* Courts are divided about whether a buyer must search deeds outside of the buyer’s chain of title (eg, the man’s deed to the woman for the westerly tract).
* Therefore, knowing whether the jurisdiction puts a buyer on notice of all land transfers by the buyer’s grantor—even those outside of the buyer’s chain of title—is essential.
* If it does, then the entrepreneur had a duty to search the title for the westerly tract.

No notice need for benefit of a real covenant to run w the land (just burden)