Easements Flashcards
Definition of Easement
A grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land.
Examples:
- The right to lay utility lines on another’s land
- The right of way over another’s land
- The right to tap into a neighbor’s drain.
As it pertains to the type of restrictions available, easements are one of these two types.
Affirmative or negative
Servient tenament
Parcel that bears the burden of the easement.
Dominant tenement
Parcel that derives the benefit of the easement.
Affirmative Easement
The right to go onto and do something on servient land.
Mose easements are affirmative
Four ways to create an affirmative easement
PING
- Prescription
- Implication
- Necessity
- Grant
Affirmative easement by grant
- Affirmative easement created by express grant.
- An easement to endure for more than one year (most, if not all
- easements) must be in writing due to SoF.
- That writing is called a deed of easement.
Affirmative easement by implication
- a.k.a easement implied from existing use
- particular use that occurs on a parcel that ought to survive division of the parcel.
How to create an affirmative easement by implication
Courts will imply an easement from that prior or existing use if:
- the use was apparent at the time of division, and
- the parties expected that the use would survive division,
- because it is reasonably necessary to the now dominant tenement’s use and enjoyment.
Example of affirmative easement by implication
- A owns two lots, Lot 1 and Lot 2. Lot 1 is hooked up to a sewer drain located on lot 2.
- A sells lot 1 to B, with no mention of B’s entitlement to continue to use that sewage drain located on A’s remaining lot.
- Court will imply affirmative easement for use of the sewage drain because A and B knew about it, and B can’t reasonably install his own.
Affirmative Easement by Necessity
- implied when grantor conveys a portion of its land with no way out except over some part of the grantor’s remaining land.
- The majority of states require a showing of reasonable necessity to imply an easement by necessity.
Affirmative Easement by Prescription
- Easement acquired by analogy to adverse possession. (COAH)
- e.g. A cuts across B’s lawn to get to A’s parcel. A is a trespasser. Over time, however, she may be transformed into the holder of an affirmative easement by prescription, by satisfying the COAH elements.
- Can’t have permission to use the land, must be hostile
Negative Easement
Entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.
Easement by Prescription- VA Time periods
- Time period for creation of a prescriptive easement is 20 years.
- In an action involving the provision of water and sewer services, the period is 10 years.
Negative easements are generally recognized only in these four categories.
LASS:
- Light
- e.g. compelling neighbor to build in a way that impedes my access to sunlight
- Air
- e.g. compelling neighbor to refrain from putting something on his land that would impede my land’s access to free flow of air
- Support, and
- e.g. compelling neighbor to refrain from excavating land in a way that would compromise my land’s subjacent support.
- Streamwater from an artifical flow.
- e.g. compelling neighbor to refrain from doing anything on his property that would interrupt or impede my premises’ access to that flow.
A minority of states recognize a negative easement for the right to a scenic view.
How a negative easement is created
- No natural or automatic right to a negative easement.
- Must be created expressly in a signed writing.
- Writing is called a deed of easement
In terms of the kind of benefit the holder receives, an easement is either of one of these two types.
- Appurtenant to land
- Held in gross
Easement Appurtenant
Easement that benefits the easement holder in his physical use or enjoyment of his own land.
Requirements for an easement appurtenant
“It takes two”
Two parcels of land must be involved:
- A benefited parcel, which derives an
advantage or gain thanks to the easement. (dominant tenement)
- A burdened parcel, which suffers the imposition of the easement. (servient tenement)
Examples of Easements Appurtenant
- A grants B a right of way across A’s land so that B can more readily reach B’s land. B has an easement appurtenant to B’s dominant tenement.
- Farmer Jack has a right to tap into a sewage drain located on farmer Pete’s land, to more effectively drain Jack’s land. Jack has an easement appurtenant to Jack’s dominant tenement.
Transferability of Easements Appurtenant
- The benefit of the appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance.
- e.g. A sells dominant tenement to X. X now holds dominant tenement.
- The burden of the appurtenant easement also passes with the servient land, UNLESS the new owner is a bona fide purchaser without notice of the easement.
- notice has same definition as land sales kx
- e.g. A sells servient land to X. X has notice of easement. Easement passes. If X does not have notice of easement, it does not pass.
Easements in Gross
- Easement that confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land.
- Servient land is burdened, but there is no benefited or dominant tenement.
Examples of Easements in Gross
- The right to place a billboard on another’s lot
- The right to swim in another’s pond
- The utility company’s right to lay power lines on another’s lot
Transferability of Easements in Gross
- An easement in gross is not transferable unless it is for commercial purposes.
- e.g. A’s easement in gross to swim in Mr. Smith’s pond is non-transferrable. But, if she is fishing for bait in the pond for Starkist Tuna company, it is transferable.