Easements Flashcards
What is an easement?
Right to a limited use or enjoyment of anthers land
Is easement revocable?
Not revocable by landowner
What is a servant tenement?
(person who grants the easement)
a. Land burdened by the easement (land which suffers because of easement)
What is a dominant tenement?
a. Land, if any benefited by the easement; land which is made more valuable because of the easement
What is an affirmative easement?
Easement holder may do something on the servant tenement
What is a negative easement?
Holder may prevent something from being done on the servant tenement (stop them from blocking view)
What does the owner of the burdened property have to do?
Has not duty to do something on the burdened property
What is an appurtenant easement?
a. dominant tenant owns land benefited by the easement
b. Easement benefits land
c. Easement runs with the land indefinitely, unless otherwise stated.
d. Example: road to go across neighbor land
What is in gross easement?
No benefited land; easement benefits a person, the dominant tenant.
What is a license?
- Use of land that is revocable by the servient tenant
a. Often deemed too weak to be a true interest in land; just a contract right; most licenses may be revoked at will.
What are the 3 creation methods for an easement?
(1) express (2)Implied (3) prescriptive
What is an implied easement? two types
- Necessity: (1) land locked; (2) reasonableness
2. Prior use: (1) use prior to severance; (2) common ownership
What is prescriptive?
(1) openness; (2) adversity; (3) exclusivity; (4) uninterrupted; (5) continuous
What are the 3 ways to create an express (written) easement?
- Grant – express grant from servient tenant to dominant tenant in a deed.
- Reservation to grantor – grantor reserves an easement in the deed when conveying the land.
- Reservation to third party – grantor reserves an easement for third party
a. Grantor should reserve the easement and then convey it to the third party
Two requirements of an implied easement?
deed conveys some but not all of grantors land, deed conveys grantors land to different grantees,
Two types of implied easements?
(1) By prior use and (2)by necessity
Requirements of a “by necessity” easement?
(1) owner needs easement to gain access to land (2) easement only exists when the necessity exists
Requirements of “by prior use” easement?
Use must exist prior to the severance of the land (parties merely forgot to place easement in deed)
Factors court examines in a by prior use easement?
i. Prior use apparent or discoverable by reasonable inspection
ii. Permanent or continuous
iii. Necessary and beneficial
iv. Price paid; existence of reciprocal benefits; exact language of deed
What are the elements of creation by prescription?
(1) open and notorious (2) adverse to owners right of claim (3) exclusive (varies by jurisdiction - majority = no; minority = yes; Texas = yes)
(4) uninterrupted use (5) continuous (Texas is 10 years).
What are the elements of creation by prescription in Texas?
(1) open and notorious (2) adverse to owners right of claim (3) Exclusive to everyone, including owner (4) uninterrupted use (5) continuous use for 10 years
Use of easement by servant tenant?
May continue to use and enjoy but may not interfere with dominant tenants use. May not move the location of the easement.
Can you transfer in gross easement?
Common law - no transfer allowed. Modern law = transfer allowed if commercial.
Termination methods of an easement?
- Natural duration
ii. Merger - Dominant and servient tenements reunited
iii. Release - Dominant tenant conveys easement back to srvient tenant
iv. Abandonment by dominant tenant - Oral release by dominant tenant followed by servient tenants conduct that reflects detrimental reliance on release
v. Forfeiture - Dominant tenant abuses the easement and injunction remedy ineffective.
vi. Not mere non-use: dominant tenant has no duty to use the easement to keep it.
vii. Prescriptive/adverse use: unreasonable nterferecne for presctipive period
viii. Sale of servient tenement of a prescriptive or implied by prior use easement: if apparent by inspection – easement likely to continue; if not apparent – jurisdictions are divided.
