Easements

Question 1

Easement defined

Answer 1

An easement gives the holder the right to do something on the property of another or the right to keep the other owner from doing something on his property

Question 2

Dominant parcel or tenement: ?

Servient parcel or tenement: ?

Answer 2

Dominant parcel or tenement: has the benefit of the easement

Servient parcel or tenement: bears the burden of the easement

Question 3

Appurtenant easement

Answer 3

easement which benefits a particular property and therefore attached to that property, rather than belonging to the homeowner

Question 4

Easement in gross

Answer 4

does not benefit any particular property. Instead, this type of easement benefits a particular party

• Assignable to other parties

Question 5

Affirmative easement

Answer 5

allows the holder of the benefit to do something on the servient tenement

• Right of way is most common

Question 6

Negative easement

Answer 6

allows the holder to prevent the servient landowner from making otherwise permissible use of her own land

• Conservation easement: leaves the fee ownership of the property in the landowner but prevents the development of the property
• Historic preservation easement: prevents a building owner from destroying or modifying the structure

Question 7

Creation of Easements

Answer 7

Easements are most often created in a deed, by express grant or reservation

Question 8

Express easement

Answer 8

a writing meeting the requirements of the Statute of Frauds

Clearest way to create an easement is by written grant or reservation, either by deed or by will

• Grant: I want someone to have a right of way over my property; I grant an easement in the deed
• Reservation: I want to retain a right of way over a property; Reservation or exception in the deed
  
  • Exceptions are used by a grantor to preserve a pre-existing right
  • Reservations: create a new right

To satisfy the Statute of Frauds, must:

1. Properly identify the parties (grantor and grantee)
2. Describe the property burdened and benefited by the easement;
3. Indicate an intent to create an easement; and
4. Be signed by the grantor

Writing should also specify the location, extent, and proper use (scope) of the easement

Question 9

Considerations when drafting an express easement

Answer 9

Location

• Grantor will want to ensure easement is located in a way that minimizes disruption of current use of property
• Grantee will want to ensure the easement is convenient for its intended purpose

Width

• A right of way that was sufficient for ingress and egree in the days of horse and buggies may not suffice for cars etc.

Scope

• What exactly are permitted and prohibited uses?

Duration

• Do the parties contemplate a perpetual easement or only a temporary one?
• To create a perpetual easement, the grant should include words of inheritance, but modern courts will look at the intent of the parties if those words are not used
• If the easement is limited to a particular purpose, the easement will terminate when the purpose is fulfilled or ceases to exist

Maintenance and Improvement

Termination

• Deemed perpetual unless otherwise stated or implied

Question 10

Easements in “Strangers to the Deed”

Answer 10

• Landowner wants to use the deed to one party to reserve an easement for a 3rd party
• Assume A has a next door neighbor, B, that has been using a dirt road over A’s property to reach his property for years. They have never formalized an agreement
• A wants to make sure that arrangement continues after she sells the property, so she includes in the deed “A hereby conveys Whiteacre to C, in fee simple, w/ the exception of an easement in favor of B for the dirt road”

Common law rule: a grantor cannot create an interest in a third party, a so-called stranger to the deed.

She may hold part of that conveyance back for herself, but cannot at the same time convey that reserved interest to someone else

Rationale behind common law: “Many deeds contain exceptions and reservation that restrict the interest passed by the grantor. However, neither exceptions nor reservations can create a right to the transferred property in persons who are strangers to the deed because ‘property cannot be conveyed by reservation’ and ‘property which is expected is not granted.’”

Minority rule: Allow deeds to create an interest in a third party.

Rationale behind minority: For these courts, the technical error on the part of the grantor should not overcome clear indications of intent

“Rather our primary objective in construing a conveyance is to try to give effect to the intent of the grantor; Common law rule can frustrate the grantor’s intent, and produces an inequitable result because original grantee has presumably paid a reduced price for title to encumbered property”

Restatement agrees with the minority

Question 11

Creations by Plat reference

Answer 11

In many cases, a deed from a developer will simply refer to a subdivision plat which contains a survey map showing the location of easements across the lot

• Reference to the plat is usually sufficient to create an easement, especially if the deed contains language such as “subject to easements shown on plat.”
• Most cases, court will hold that an easement exists as to roads, streets, or parks appearing on the plat, either by express grant/reservation, by implication, or by estoppel
• Restatement agrees that plats showing common areas and streets imply servitudes for those elements

Question 12

Easement by Estoppel

Answer 12

• An easement by estoppel may arise if injustice would otherwise result when: the owner or occupier permitted another to use that land under circumstances in which it was reasonable to foresee that the use would substantially change position believing that the permission would not be revoked, and the use did substantially change position in reasonable reliance on that belief
• Elements for equitable estoppel:
  
  • Substantial injustice
  • Substantial reasonable reliance
• Restatement suggests that an easement by estoppel would be justified if “it should have been apparent that permission for a permanent use was sought”
• Restatement also counsels “courts should be very cautious in establishing servitudes on the basis of estoppel because they tend to penalize neighborly cooperation, and they undercut the policies encouraging the use of written documents for land transactions
• Doctrine of estoppel tends to favor fairness over certainty
• Foreseeable reliance- considers probable expectations of the parties at the time permission was granted
• Irrevocable license: based on detrimental reliance, and should last no longer than necessary for the reliance interest to be recovered; limited to duration necessary to prevent inequity
• Not all jurisdiction accept the idea of an irrevocable license- rationale is allowing oral licenses to become irrevocable and thereby equivalent to easements would undermine the statute of frauds

Question 13

Easements Implied by Prior Use or Necessity

Answer 13

Doctrine focuses on what we believe the parties intended at the time of the conveyance, even though they failed to create an easement in a writing meeting the Statute of Frauds

Question 14

Easement implied by prior use

Answer 14

1. Common owner (originally one owner owned both the burdened and benefited parcels)
2. Prior to splitting up the property, use of part of the property to benefit another part (quasi-easement)
3. Use was apparent and continuous
4. Use was reasonably necessary

Question 15

Easement implied by necessity

Answer 15

1. Common owner
2. Use is strictly necessary (although some courts use a lower standard)
3. Necessity for easement arose when the property divided

Question 16

Condemnation statutes

Answer 16

in many states, if a parcel becomes landlocked, the owner can force an adjacent property owner to grant a right of way for ingress and egress; unlike an implied easement by necessity however, landlocked property owner must compensate the subservient owner for the fair market value of the easement

Question 17

Easement by prescription

Answer 17

Easements by prescription, or prescriptive easements, may arise by the adverse use of another’s property under a doctrine very similar to adverse possession, except that the right is established by continual use rather than occupation of the property

Elements:

1. User must establish the use that is adverse (w/out the owner’s permission)
2. Most jurisdictions presume adversity in the absence of any other explanation
3. Open and notorious
4. Continuous
5. For the period of prescription (established by a limitations statute which varies by jurisdiction)
6. Exclusive (some jurisdictions)
   
   1. Exclusive use in this context does not mean that claimant must be the only one using the easement, or that the user must exclude the dominant owner
   2. Exclusivity means only that the use must not be dependent on another’s rights or that the claimant must use the easement as his own, rather than as a member of the general public

Most jurisdictions presume adversity in the absence of any other explanation

“If the other requirements are met, the use will be presumed to be adverse, and in order to overcome such presumption the owner of the servient estate has the burden of showing that the use was permissive”

Question 18

Adverse

Answer 18

• An adverse use is a use made without the consent of the landowner, or holder of the property interest used, and without other authorization.
• Measured by the observable actions and statements of the person claiming a prescriptive easement and the owner of the land
• Use of the property as the owner himself would exercise entirely disregarding the claims of others and asking permission of no one

Question 19

Continuous

Answer 19

• Critical that there is no break in the attitude of mind of the claimant or the claimant’s predecessor which would amount to a recognition of subordination to the servient owner’s consent or an abandonment of the use in response to the servient owner’s demand

Question 20

Open and Notorious

Answer 20

Must either be actually known to the rightful owner of the servient estate, or be open and notorious so that a reasonable owner would have been on notice of the adverse use

Question 21

Posting

Answer 21

• Some states you have implied permission to enter private land to fish or hunt, unless the landowner specifically denies permission or has posted signs
• Posting can help you avoid easements by prescription

Question 22

Implied Dedication

Answer 22

• If a landowner allows the public to use a particular road or path for a long period of time, a court may hold that public dedication has been implied
• Some courts require evidence of donative intent, along with the extensive period of use

Question 23

Most Common ways to terminate an easement

Answer 23

1. Release: The dominant tenant agrees to relinquish the easement. This should be in writing to satisfy the Statute of Frauds, and recorded so that title is clear (which means it must have a notarial acknowledgment)
2. Expiration: If the original easement was only for a certain period of time, it ends upon the expiration of that time period. In addition, if the easement was for a particular purpose, such as to reach a mine, it ends when the purpose has been fulfilled (ex. The mine is played out). Similarly, an easement by necessity ends when it is no longer necessary
3. Abandonment: This requires more than just a period of non-use; The court must have some indication (express or implied) that the dominant tenant intended to abandon the easement
4. Merger: If the dominant and servient parcels come to be owned by the same person, the easement is automatically extinguished, because a landowner cannot have an easement over her own land
5. Estoppel: Just as in easement creation, the easement may be terminated if the dominant tenant makes a promise to release the easement, which the servient owner relies on to her detriment
6. Condemnation: If the government acquires the servient tenement by eminent domain (for example, for a road or a government building), it may also forcibly terminate an easement on the property, although it must pay the dominant owner just compensation
7. Prescription: Just as in easement creation, the owner of the servient estate may terminate an easement by blocking the dominant tenant’s use of it for the prescriptive period
8. Notice: A subsequent purchaser of the servient tenement who takes title without notice of the easement may be a bona fide purchaser under the jurisdiction’s recording act, and thus not be bound

Question 24

Misuse

Answer 24

Another way an easement might be terminated is through misuse

Typically the remedy is an injunction against further misuse along with damages for any harm caused to the servient owner by the previous conduct

The court may also terminate the easement if the easement is intentional and frequent, or if the misuse is likely to continue

Questions of scope- the dominant owner misuses the easement only when the use exceeds the easement’s scope, i.e. the permissible use for which the easement was established

• Drafter of an express easement should carefully delineate the proper uses and location of easement and try to anticipate future developments

Questions of scope will depend on the exact language of the easement and the express or implied intent of the parties regarding scope

• Generally, courts allow for the natural evolution of easement use, given changes in technology, as long as the burden on the servient owner is not appreciably increased

Question 25

Another common issue is whether a right of way may be used to benefit land other than the original dominant tenement?

Answer 25

General rule: an easement may not be used for the benefit of other land; enjoins any use of an easement to benefit a non-dominant parcel

Exceptions to the majority rule:

• Employ a more flexible intent test
  
  • Court will examine whether the parties at the time the easement was created reasonably contemplated it might be used for the benefit of adjacent property not formally within the terms of the easement
    
    • If use overburdens the servitude it will not be allowed

Question 26

Easement Valuation

Answer 26

Traditionally, courts hold that a value may be ascertained by comparing the value of the servient estate before and after it is burdened by the easement. (ex: buyer has prop for 500k. Easement makes it worth 450k. Easement is 50k.)