Easements

Question 1

Easements- Non-possessory Right

Answer 1

1) An interest in land possessed by another limiting use or enjoyment of land because it is not subject to the will of the title holder
2) Can be protected from interference by others as the right is not extended to all
3) Can be conveyed by conveyance

Question 2

Prescriptive Easement

Answer 2

(1) Use of the claimed easement openly, adversely, continuously, uninterruptedly and under a claim right;
(2) For a period of more than that given in the statute of limitations;
(3) And not created by consent–A prescriptive easement cannot develop out of a license unless the use continues after either revocation by the licensor, or repudiated by the licensee.

Question 3

Creation of Easements:

Answer 3

(1) Expressly by deed
(2) Implied: necessity & implication (past use & land)
(3) Prescription

Question 4

Affirmative easement & negative easement

Answer 4

Affirmative easement – allows its holder

Negative easement–prevents land possessor

Question 5

Appurtenant easement

Answer 5

benefits title-holder of neighboring parcel/ runs with the land

Question 6

Easement in Gross + Rules

Answer 6

benefits an individual, NOT holding title to neighboring estate
Majority: limit easements in gross to such uses as utility lines and railroads, personal, non-transferable interests
Minority: only a personal, non-conveyable and non-inheritable right of its holder
Minority-Minority: recognizes, but will only create them if the parties’ intent is clear

Question 7

Profit

Answer 7

right of non-title holder to remove certain kinds of items

Question 8

Whether an Expressed Easement has been created? Mitchell v. Castellaw

Answer 8

(1) How the land is being used as the use of the land is often the issue
(2) In construing a document, specific language will be given more importance than general language

Question 9

License

Answer 9

(1) The permission to use land/ contracting rights, not a property interest
(2) Subject to the will of the land title holder
(3) Not usually enforced in equity because a breach leads to damages

Question 10

Irrevocable license

Answer 10

(Minority) land title-holder needs to be prevented from taking advantage of the licenses

Question 11

Easement v. estate

Answer 11

possession

Question 12

Easement by Necessity

Answer 12

(implied easement)

1) originally two parcels
2. Only exist for access to a public road is over the other parcel.
3. AND, Easement by necessity exists “Inchoate”- unexercised- until needed

Question 13

Pre-existing Use Implied

Answer 13

1. Common ownership of parcels followed by a conveyance of one or the other
2. Before the severance of ownership, the use by the dominant estate of land inside the servient estate
3. The use was apparent, obvious, continuous and permanent
4. The claimed easement is necessary and beneficial to the dominant estate

Question 14

Land Use Implied

Answer 14

Reference to a map how land was used before
i.e. Utility box, private road, etc. If any of these are considered on a map they can be considered easements even if they are not indicated in a deed

Question 15

preventing easement by implication

Answer 15

language in deed

Question 16

Prescriptive Easement

Answer 16

1) Use:
a. Openly- They must be apparent and visible; not secretive
b. Adversely- The use must be against the title of the estate holder
c. Continuously- the use must be constant
d. Uninterruptedly - the use must be continuous and regular; not starting and stopping.
e. Under a claim of right- intentional trespassers may be excluded, -N-meaning that you are acting like you have the right to do it
2) For a period of more than that given in the statute of limitations;
3) And not created by consent

Question 17

Prescriptive Easement v. Adverse possession

Answer 17

Use/ possession

Question 18

Acquiescence

Answer 18

(“assent”)

(1) Submission to an adverse possession (not active permission)
(2) AND; Servient estate holder must actually or constructively know and not object

Question 19

Customary Rights

Answer 19

(minority)

(1) Easement like right
(2) Cannot be create by conveyance (5th element, not satisfied)
a. long and general use
b. without interruption AND dispute
c. limited to a particular area of the land
d. consent never required;
e. AND, No other laws violated by use

Question 20

Littoral Rights – Ocean-front Estates Rules

Answer 20

Majority: title up to the mean high tide line (the public/state owns the dry sand area of the beach)

Minority: mean low tide line (the public can only use the part of the beach that is typically wet (under water))

Question 21

Rule of Reasonableness of Easements

Answer 21

both the dominant and servient estate holders’ rights are construed in a reasonable way

(1) Only be used by the appurtenant dominant estate
(2) Character of the use of the easement cannot change from that which was granted

Question 22

Surcharging

Answer 22

unreasonable burden on the servient estate, the change will be enjoined

Question 23

Interrupting an easement Analysis

Answer 23

(1) Implement the wording that created the easement (Mitchel v. Castlaw)
(2) If there are any gaps, use the “rule of reasonableness” to determine an appropriate balance between the dominant and servient estates

Question 24

Moving an Easement

Answer 24

CL: no

Restatement: if it is not going to harm the dominant estate holder

Question 25

Time Standard for Interpreting an Easement

Answer 25

contemporary standards, not when easement created

Question 26

Termination of an Easement

Answer 26

1) Express
2) Merger
3) Abandonment
4) Prescription