Easements Flashcards
Easements - definition
An easement is a grant of nonpossessory property interest, and entitles its holder to some form of use or enjoyment of another land. An easement holder has the right to use another tract of land for a specified purpose, that has no right to possess or enjoy that land. an easement is presumed to be of perpetual duration, unless the grant specifically limits the interest.
Common examples of easements include: the right to utility lines on another land, the right of way over another land, and the right to tap into a neighbors drain.
Types of easements - affirmative
Most easements are affirmative. An affirmative easement is the right to go onto and do something on the servient land, meeting the land that is imposed upon by the easement. 
Types of easements - negative
The negative easement entitles a told her to prevent the servant landowner from doing something that would otherwise be permissible. Negative easements are generally recognized and only for categories: light, air, support (like erosion) and stream water from an artificial flow
A minority of states also allow a negative easement for scenic view.
Types of easements - negative - creation of a negative easement
Negative easements can only be created expressly, by a writing, signed by the grantor. There is no natural or automatic right to a negative easement. 
Types of easements - appurtenant or in gross - appurtenant
An easement is a pertinent when it benefits its holder in his physical use or enjoyment of his own land. How will you know when you’ve got an easement of pertinent, two parcels of land must be involved: a dominant tenement, which derives the benefit and a servant tenement, which bears the burden. 
Types of easements - appurtenant or in gross - in gross
And easement is gross if it confers upon its holder, only some personal or pecuniary advantage that is not related to their use or enjoyment of their land. Here, servient land is burdened. However, there is no benefited or dominant tournament because the benefits holder rather than another parcel. Some common examples of an easement and gross are: the right to place a billboard on another lot, the right to swim in another pond, and the utility company’s right to lay powerlines on another lot.
Transferability - easement appurtenant
The appurtenant easement passes automatically with transfers of the dominant tenement, regardless of whether it is even mentioned in the convenience.
The burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice of the easement.
Transferability - easement in gross
An easement in gross is not transferable unless it is for commercial purposes.
Creation - 4 ways
The basic methods of creating an easement:
Prescription
Implication
Necessity
Grant
Creation - by grant
Any easement must be memorialized in writing and signed by the holder of the servant tenement unless it’s duration is brief enough to be outside the coverage of a particular state statute of frauds. So, most commonly, this means that easements to endure for greater than one year must be in writing to be enforceable. That writing must comply with all formal requisites of a deed. the writing that evidence is the easement is called a deed of easement. 
Creation - by implication - generally
Easements by implication are created by operation of law: they are an exception to the statute of frauds, which would otherwise require these easements to be in writing
Creation - by implication - implied from preexisting use
An easement implied from pre-existing uses also known as a quasi easement. For the court to imply an easement, it would have to find:
The previous prior to division use of the servant part was apparent and continuous
And
The parties expected that the use would survive division because it is reasonably necessary to the dominant tenements use and enjoyment
Creation - by implication - easement implied without any existing use
In two limited situations, easements may be implied without pre-existing use:
Subdivision plat: when lots are sold in a subdivision with reference to a recorded plat or map that shows streets leading to the lot, buyers of the lots have implied easements to use the streets to access their lots
Profit a prendre: the holder of this profit has an implied easement to pass over the surface of the servient land and to use it as reasonably necessary to extract from the servient property it’s minerals or some product of the servient property as specified by the terms of the profit. 
Creation - by necessity
Easement by necessity, another form of easement by implication, will 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. The owner of the servient parcel has the right to locate the easement.
Creation - prescription
An easement may be acquired by analogy to adverse possession. For the elements to acquire a prescriptive easement, remember COAH:
Continuous: continuous and uninterrupted use for the given statute’s period
Open: open and notorious use (that is, discoverable up upon inspection)
Actual: actual use that need not be exclusive
Hostile: hostile use, meaning use without the servant owners consent
Note, permission defeats the acquisition of an easement by prescription. An easement by prescription requires that they use be hostile. Generally, prescriptive easements cannot be acquired in public land.
Creation - express reservation
An easement by reservation arises when a grand tour conveys title to land, but reserves the right to continue to use the track for a special purpose.
Watch for a fact pattern in which the grand reserves an easement for someone else. Under the majority view, an easement can be reserved only for the grand tour, and attempt to reserve an easement for anyone else is void.
Scope of easements
The scope of an easement is determined by the terms of the grant or the conditions that created it. If an easement is created, but not specifically located on the servant tournament, an easement of sufficient, height, and direction for the intended use will be implied. The owner of the servant tournament may the location of the easement so long as there’s selection is reasonable.
If there are no specific limitations in the grant, courts, assume that an easement was intended to meet both present and future needs of the done dominant tenant. For example, an easement may wide accommodate new, wider cars. If however, the dominant parcel is subdivided, the law owners will not succeed to the easement if to do so with unreasonably overburden the servient estate.
Remember that overuse or misuse of an easement does not terminate the easement. The appropriate remedy for the servant owner is an injunction against the misuse. 
Scope of easements - use of servient estate: repairs
The servant owner generally may use her land in any way she wishes so long as her conduct does not interfere with the easement. The easement holder has a duty to make repairs to the easement if she is the sole user, but if both the easement holder and the servant owner are users, the court will portion the repair costs.
Termination - 8 ways
Remember END CRAMP:
estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
In addition, an easement may be terminated under its stated conditions, meaning the original easement grant may specify when or what conditions the easement will terminate.
Termination - estoppel
An oral expression of intent to abandon an easement won’t terminate an easement, unless it’s also committed to writing, a release, or accompanied by action, abandonment. But if the servant owner material changes their position in reasonable reliance on the easement holders, assurances or representations, such as that the easement will no longer be enforced, the easement terminates through estoppel.
Termination - necessity
Easements created by necessity expire as soon as the necessity ends, unless the easement was reduced to an express grant.
Termination - destruction
Destruction of the servient land, other than through the willful conduct of the servant owner, will terminate the easement.
Termination - condemnation
Condemnation of the servant estate by governmental eminent domain power will terminate the easement. Courts are split as to whether easement holders are entitled to compensation.
Termination - release
A release given by the easement holder to the servant landowner will terminate the easement. Note that this applies even to an easement in gross, which is otherwise inalienable. The release must be in writing.
Termination - abandonment
An easement holder must show by physical action and intent, to never use the easement again in order to terminate an easement by abandonment. For example, building a structure that blocks access to an easement on adjoining lot.
Mere non-use or mere words are insufficient to terminate by abandonment though oral expressions combined with a long period of non-use may be sufficient. 
Termination - merger
An easement is extinguished when title to the easement and title to the servant land becomes vested in the same person because a person does not need an easement over their own land. So, if the same person acquires ownership of both the easement and the servient estate, those estates merge and the easement is destroyed.
If title is separated again, the easement is not automatically reinstated. Would need to re-create the easement.
Termination - prescription
A servant owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession.
Remember COAH: continuous interference, open and notorious, actual, hostile to the easement holder.
Party walls and common driveways - generally
Courts will treat a wall erected, partly on the property of each two adjoining lots as belonging to each landowner to the extended rest upon their land. Courts will also imply, mutual cross easements of support, with the results that each party can use the wall or driveway and neither party can unilaterally destroy it.
Party walls and common driveways - creation
A written agreement is required by the statute of frauds for the express creation of a party wall or common driveway agreement, but in a revocable license can arise from detrimental reliance on a parol agreement. Party walls and common driveways can also resolve from implication or prescription.
Party walls and common driveways - running of covenants
If party wall or common driveway, owners agree to be mutually responsible for maintaining the wall or driveway, the burdens and benefits of those promises, which are deemed covenants, run to the successive owners of each parcel.
