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.
How the scope of an easement is defined
- set by the terms or conditions that created it.
- Unilateral expansion is not permitted.
- e.g. B’s easement for Blackacre cannot be unilaterally expanded to Greenacre.
The ways an easement can be terminated
END CRAMP
- Estoppel
- Necessity
- Destruction
- Condemnation
- Release
- Abandonment
- Merger
- Prescription
Easement termination by estoppel
- the servient owner materially changes position in reasonable reliance on the easement holder’s assurances that the easement will no longer be enforced.
- e.g. A tells B that A will no longer be using her right of way across B’s parcel. In reasonable reliance, B builds a swimming pool on B’s parcel, thereby depriving A of the easement. In equity, A is now estopped from enforcing the easement.
Easement Termination by necessity
- Easements expire as soon as the necessity ends.
- Exception: if the reason for the easement was necessary, and thus the parties created by express grant, it will not end once the need ends.
- e.g. O conveys a portion of his ten-acre tract to A, with no means of access out except over part of O’s remaining land. A and O agree in writing that A will enjoy an easement over a strip of O’s remaining acreage due to necessity. City then builds public roadway that affords A access out. Easement still stands bc it was in writing.
Easement Termination by Destruction
Destruction of the servient tenement, other than through the willful conduct of the servient owner, will terminate the easement.
Easement Termination by Condemnation
Condemnation of the servient tenement by governmental eminent domain power will end the easement.
Easement Termination by Release
- Release given in writing by the easement holder to the servient landowner.
- The written release is the most customary way to terminate an easement.
Easement Termination by Abandonment
- Easement can be terminated by holder abandoning it.
- The easement holder must demonstrate intent to never make use of the easement again through physical action.
- Mere nonuse/oral representations not enough to terminate.
- e.g. A has a right of way across B’s parcel. A erects a structure on A’s parcel that precludes her from ever again reaching B’s parcel.
Easement Termination through the Merger Doctrine
- a.k.a unity of ownership
- The easement is terminated when title to the easement and title to the servient tenement become vested in the same person.
Easement Termination by Prescription
- Easement can be terminated when the servient owner interferes with it in accordance with the elements of adverse possession.
- Must have a pattern of use by the servient tenement owner that is tantamount to Continuous interference with the easement, Open and notorious interference, and Actual interference that is Hostile to the easement holder.
VA law on Easement Termination
In addition to the other ways to terminate, an easement in Virginia will be terminated if the original purpose for which the easement was created no longer exists.
