Easements Flashcards
What is an appurtenant?
it is an attachment with the land, not to an owner.
Where the dominant estate (the benefited owner) is the one that has a right to go over to the servient estate (burdened owner).
Automatically transferred when the dominant land is sold
What is easement in gross?
An easement that doesn’t involve land (i.e. you have the right to swim in my lake)
can only be a servient land, not a dominant land
Can be assigned but is not automatic
The One stock rule - 2 owners must act as one, no unilateral decisions
What is the modern view on easements in gross?
they are assignable if the parties so intend
What are the only easements that are not assignable?
recreational easements - because they are intended to be personal and there is a fear of burdening the servient land beyond the original contemplation of the parties.
How can one determine if an easement is appurtenant or in gross?
look to the intent of the parties in the deed that created the easement.
How does alienation work with easement in gross?
an easement in gross is not transferable unless it is for commercial purposes
what are alienable easements generally used for?
commercial purposes
what are in-alienable easements generally used for?
personal use
What are the 6 elements for an easement by grant?
- must comply with SOF
- be in writing
- ID the grantor and grantee
- contain words manifesting an intention to create an easement
- describe the affected land
- be signed by the grantor
What are the 6 elements for the creation of an easement by reservation (giving to a third party)?
- must comply with SOF
- be in writing
- ID the grantor and grantee
- contain words manifesting an intention to create an easement
- describe the affected land
- be signed by the grantor
What is the common law take on the creation of easements by reservation (giving to a third party)?
that third party reservations are invalid
What is the modern law take on the creation of easements by reservation (giving to a third party)?
look at the grantor’s intent, if it is there, then the third party can get the easement
What are the 3 elements to the creation of an easement implied for prior existing use?
- SOF doesn’t apply
- existing, apparent and continuous use
- reasonable necessity
What are the 2 elements for reasonable necessity under the creation of easements implied for prior existing use?
- does not need to be an absolute necessity
- if dominant tenement would be forced to expend a lot of money or labor to substitute for the easement, that is sufficient for reasonable necessity
How is an easement divided/split?
an easement is divisible so long as the beneficiaries make a common use of the easement
as long as its being used as one stock/as an entirety - even though its divided it still needs to be used as one.
What is an easement by necessity?
arises by operation of law based on the circumstances of the case, without any express agreement
It is an exception to the SOF and requires a high degree of necessity when title is severed, but no prior use exists
What are the 2 rules that minimize the burden that an easement by necessity imposes on the servient land?
- the servient owner is usually permitted to select the location for the road easement, so long as the route is reasonable.
- endures only for so long as the necessity itself
When does an easement by necessity end?
once the necessity itself ends
What are 2 elements required by the creation of easements by necessity?
- severance of title
2. strict necessity
What is severance of title for the creation of easements by necessity?
it is to land held in common ownership and requires the ownership in a tract of land, followed by the conveyance of part of the tract to a new owner
What is the majority view with strict necessity in easements?
in order to establish an access easement under strict necessity, an owner must prove that the severance of title caused the property to be absolutely landlocked
what are the 2 factors to determining when there is a land-lock for strict necessity in easements?
- a parcel must be entirely surrounded by privately owned land, without touching any public road
- the owner must not hold and easement or other legal right of access to cross the adjoining land to reach an public road
What is the minority view with strict necessity in easements (3rd restatement of property)?
only requires reasonable necessity for the easement - the easement must be convenient or beneficial to the normal use and enjoyment of the dominant land
What are the 8 factors that determine the implications of an easement?
- whether the claimant is the conveyor or the conveyee
- the terms of the conveyance
- the consideration given for it
- whether the claim is made against a simultaneous conveyee
- the extent of necessity of the easement or the profit to the claimant
- whether reciprocal benefits result to the conveyor and the conveyee
- the manner in which the land was used prior to the conveyance
- the extent to which the manner of prior use was or might have been known tot he parties.
Can an easement appurtenant be extended by the dominant estate?
No, an easement appurtenant to one parcel of land may not be extended by the owner of the dominant estate to other parcels owned by him, whether adjoining or distinct tracts to which the easement is no appurtenant.
If an easement is appurtenant to a particular parcel of land, any extension thereof to other parcels is a misuse of the easement - which results in trespass
What are the 3 fundamental principles applicable to a request for an easement injunction?
- it is equitable and addressed in sound
- vested with the broad discretionary power to shape injunctive relief to fit the particular facts and circumstances to the case at hand.
- actual and substantial injury sustained by the person seeking the injunction
What is important about the location of an easement once its established?
the location of an easement, once fixed by the parties cannot be changed by the servient owner without permission of the dominant owner
What are the 4 things the Restatement (3rd) of Property say about a change in location of an easement?
It grants the servient owner the right to change the location of an easement, as his expense, if the change does not:
- significantly lessen the utility of the easement,
- increase the burdens on the owner of the easement in its use and enjoyment,
- increase the burdens on the owner of the easement in its use and enjoyment, or
- frustrate the purpose for which the easement was created.
What is a negative easement?
the right of the dominant owner to stop the servient owner from doing something on the servient land
How are negative easements usually enforced?
usually covered by zoning
What are the 4 types of negative easements?
- blocking windows/light
- interfering with air flow
- removing support of building
- interfering with the flow of water
What are the 3 things needed to make an easement license irrevocable?
- reasonable reliance
- with knowledge of the licensor
- expend resources with knowledge of licensor
What are the 4 types of easements in general?
- Affirmative
- Negative
- Appurtenant
- In gross
What is the one stock rule that applies to easements in gross?
The owners must use it as one - no unilateral decisions
What are the 4 types of easements that can be created?
- Express
- Implied
- Prescriptive
- Estoppel
What is an express easement?
It is one that has been written down granting or reserving
What is an implied easement?
where it was once owned by a single owner
can be appurtenant or in gross
What is a prescriptive easement?
when an individual has used the land in a certain way for a number of years.
adverse possession considerations here
what is easement by estoppel?
when there is oral permission through a license - it Is revocable
What are the 7 factors to the termination of an easement?
- release
- expiration by necessity
- merger
- estoppel (because its revocable)
- AP/prescription
- Abandonment
- Alteration
What are the 2 considerations in the scope and meaning of easements?
- look at the intent of the parties - written and circumstantial
- Is it reasonably burdensome?
When asking if express an implied easements are unreasonably burdensome where would one look?
Express - look at the contract and the circumstances
Implied - look at the contract and the circumstances as well determining the extent of the necessity
How can easements change?
Can change from 1 man to 6 but not from parcel to parcel
Change in location - the serviant owner may change the location if it doesn’t significantly lessen utility of increase burden on the user
The MO take on easement by estoppel?
it is allowed
