Easements

Question 1

Two types of easements

Answer 1

a. Appurtenant easement is an easement that benefits a particular parcel of land and only occurs when the easement benefit is tied to a particular piece of land. There are two estates created by an appurtenant easement:
1. Dominant estate is the benefited parcel in other words the holder of the easement.
2. Servient estate is the burdened parcel in other words the parcel providing the benefit to the dominant estate.
b. Easement in gross is an easement whose benefit is provided to an individual and is not tied to a particular piece of land.

Question 2

Creation of easements

Answer 2

There are five ways to create an easement.

a. Express creation
b. Creation by implication
c. Easement by necessity
d. Easement by prescription
e. Easement by estoppel

Question 3

Express creation

Answer 3

Express creation in writing in a deed or will.

1. The SOF writing requirements apply.
2. Reservation in grantor is a type of express easement where the grantor passes title to the land but reserves for himself the right to continue to use the land for some purpose. Typically this is included in the grant or deed.

Question 4

Creation by implication

Answer 4

Creation by implication has the following requirements:

1. Land was originally one parcel with common ownership.
2. The land is severed into more than one parcel.
3. The use of the property existed prior to the severance .
4. The easement is reasonably necessary to the dominant land’s use and enjoyment of the property.

Question 5

Easement by necessity

Answer 5

Easement by necessity has the following requirements:

1. Common ownership of the dominant and servient parcels.
2. Easement is strictly necessary . The necessity must exist at the time of the conveyance (e.g., landlocked parcel).
3. Prior use is not required .

Question 6

Easement by prescription

Answer 6

Easement by prescription is one obtained using the same principles as adverse possession. Requirements:

1. Actual use: The claimant must have actual use of the property that is adverse to the servient parcel. Unlike adverse possession, it need not be exclusive use.
2. Open, notorious, and visible use of the property.
3. Hostile use, which is without the owner’s consent.
4. Continuous use for the given statutory period. Tacking is allowed is satisfy the statutory period.

Question 7

Easement by estoppel

Answer 7

Easement by estoppel can occur where the servient parcel allows use of the property such that it is reasonable that the user will substantially change his position in reliance on the belief that the permission will not be revoked.

Question 8

Scope of easements

Answer 8

a. Present and future needs: Courts assume the easement intends to meet both present and future needs of the dominant parcel due to normal, foreseeable development of the dominant estate. (E.g.: An easement may be widened to accommodate wider cars.)
b. Excessive use: Increased use that unreasonably interferes with the use of the servient estate is not permitted.
c. Remedy for excessive use or misuse is an injunction and/or damages, but the easement will not be terminated.

Question 9

Maintenance and repair of easements

Answer 9

a. The servient owner is not required to repair and maintain the easement.
b. The dominant owner has an implied right to repair and maintain the easement.

Question 10

Transfer of easements Servient (burdened) estate transfer

Answer 10

An easement runs (passes) with the land and transfers to the new owner of a servient estate except if the purchaser of the servient estate is a BFP who took for value with no notice. [Note: Inquiry notice may be an issue.]

Question 11

Transfer of easements-Dominant (benefited) estate transfer

Answer 11

Whether the benefit runs with the land depends on whether the easement is appurtenant or in gross.

1. Appurtenant easements normally run (pass) automatically with the transfer of the dominant (benefited) estate.
2. In gross easements
   a. Common law rule is that easements in gross are not transferable.
   b. Modernly, commercial easements in gross are transferable.

Question 12

Easements

Answer 12

An easement is the right to use the land of another. Easements are nonpossessory property interests. 1. Easements can be affirmative or negative. a. Affirmative easements entitle the holder to do something on another’s land (e.g., use a driveway). b. Negative easements prevent the landowner from doing something on his own land. These are not common. (E.g: Owner cannot develop land in a way that blocks the neighbor’s view.)

Question 13

Termination of easements

Answer 13

Easements may terminate in several ways.

a. Estoppel: The servient owner materially changes position in reasonable reliance on the easement holder’s assurances that the easement will no longer be enforced.
b. Necessity: Easement by necessity ends when the necessity ends.
c. Destruction of servient land, so long as it is not willful destruction by the owner.
d. Condemnation of servient estate by eminent domain.
e. Release in writing by easement holder to the servient owner.
f. Abandonment action: The easement holder demonstrates by physical action the intent to never use the easement again. Words alone or mere nonuse will not be sufficient to constitute abandonment.
g. Merger doctrine: The easement is extinguished when title to both the dominant and servient parcels become vested in same person.
h. Prescription: An easement can be terminated by employing the principals of prescription where there is an adverse, continuous interruption of the easement for the statutory period.