Easements Flashcards
Burdened estate v. Benefited estate
The burdened estate is the one in which a use, restriction, or affirmative obligation rests
The benefited is the one with a right of enforcement
Other term for burdened estate
Servient
Other term for benefitted estate
Dominant
3 ways in which to categorize an easement
1) appurtenant or in gross
2) affirmative or negative
3) method of creation
Difference between appurtenant and in gross
Appurtenant is a right vested in the property itself
In gross is a right enjoyed by an individual
Difference between affirmative and negative
Affirmative permits the dominant estate to do something
Negative prevents the servient estate from doing something
4 methods of easement creation
1) express (in writing)
2) implied by prior existing use
3) implied by strict necessity
4) by prescription
Requirements of apparent existing use
One part of land serving another part and use exist at time of common owner dividing property. Parties reasonably expect service to continue and service is REASONABLY necessary
Requirements of strict necessity
Common ownership of property subsequently divided. At time of severance, use of burdened parcels is necessary to allow reasonable enjoyment of benefited parcel, and necessity is SUBSTANTIAL (high standard)
Requirements of prescription
Similar to adverse possession, with a modified exclusivity requirement. Use was open and notorious, adverse under a claim of right, continuous for statutory period
Assignability of appurtenant easements
Generally assignable if intended by the parties and burdened party has notice
Assignability of in gross easements
Generally assignable so long as parties original intent is not overburdened. NOT ASSIGNABLE IF RECREATIONAL
Reservation v. Exception
Both in deed. Reservation newly created, exception previously existed
True of False: Easements cannot generally be reserved in favor of a 3rd party
True. This is the majority rule
Duration of easement
Fee simple (perpetual), life of party, fixed, or specified event
