Easements Flashcards
Easements- Non-possessory Right
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
Prescriptive Easement
(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.
Creation of Easements:
(1) Expressly by deed
(2) Implied: necessity & implication (past use & land)
(3) Prescription
Affirmative easement & negative easement
Affirmative easement – allows its holder
Negative easement–prevents land possessor
Appurtenant easement
benefits title-holder of neighboring parcel/ runs with the land
Easement in Gross + Rules
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
Profit
right of non-title holder to remove certain kinds of items
Whether an Expressed Easement has been created? Mitchell v. Castellaw
(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
License
(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
Irrevocable license
(Minority) land title-holder needs to be prevented from taking advantage of the licenses
Easement v. estate
possession
Easement by Necessity
(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
Pre-existing Use Implied
- Common ownership of parcels followed by a conveyance of one or the other
- Before the severance of ownership, the use by the dominant estate of land inside the servient estate
- The use was apparent, obvious, continuous and permanent
- The claimed easement is necessary and beneficial to the dominant estate
Land Use Implied
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
preventing easement by implication
language in deed
Prescriptive Easement
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
Prescriptive Easement v. Adverse possession
Use/ possession
Acquiescence
(“assent”)
(1) Submission to an adverse possession (not active permission)
(2) AND; Servient estate holder must actually or constructively know and not object
Customary Rights
(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
Littoral Rights – Ocean-front Estates Rules
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))
Rule of Reasonableness of Easements
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
Surcharging
unreasonable burden on the servient estate, the change will be enjoined
Interrupting an easement Analysis
(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
Moving an Easement
CL: no
Restatement: if it is not going to harm the dominant estate holder
Time Standard for Interpreting an Easement
contemporary standards, not when easement created
Termination of an Easement
1) Express
2) Merger
3) Abandonment
4) Prescription
