Easements

Question 1

What is an appurtenant?

Answer 1

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

Question 2

What is easement in gross?

Answer 2

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

Question 3

What is the modern view on easements in gross?

Answer 3

they are assignable if the parties so intend

Question 4

What are the only easements that are not assignable?

Answer 4

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.

Question 5

How can one determine if an easement is appurtenant or in gross?

Answer 5

look to the intent of the parties in the deed that created the easement.

Question 6

How does alienation work with easement in gross?

Answer 6

an easement in gross is not transferable unless it is for commercial purposes

Question 7

what are alienable easements generally used for?

Answer 7

commercial purposes

Question 8

what are in-alienable easements generally used for?

Answer 8

personal use

Question 9

What are the 6 elements for an easement by grant?

Answer 9

1. must comply with SOF
2. be in writing
3. ID the grantor and grantee
4. contain words manifesting an intention to create an easement
5. describe the affected land
6. be signed by the grantor

Question 10

What are the 6 elements for the creation of an easement by reservation (giving to a third party)?

Answer 10

1. must comply with SOF
2. be in writing
3. ID the grantor and grantee
4. contain words manifesting an intention to create an easement
5. describe the affected land
6. be signed by the grantor

Question 11

What is the common law take on the creation of easements by reservation (giving to a third party)?

Answer 11

that third party reservations are invalid

Question 12

What is the modern law take on the creation of easements by reservation (giving to a third party)?

Answer 12

look at the grantor’s intent, if it is there, then the third party can get the easement

Question 13

What are the 3 elements to the creation of an easement implied for prior existing use?

Answer 13

1. SOF doesn’t apply
2. existing, apparent and continuous use
3. reasonable necessity

Question 14

What are the 2 elements for reasonable necessity under the creation of easements implied for prior existing use?

Answer 14

1. does not need to be an absolute necessity
2. 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

Question 15

How is an easement divided/split?

Answer 15

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.

Question 16

What is an easement by necessity?

Answer 16

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

Question 17

What are the 2 rules that minimize the burden that an easement by necessity imposes on the servient land?

Answer 17

1. the servient owner is usually permitted to select the location for the road easement, so long as the route is reasonable.
2. endures only for so long as the necessity itself

Question 18

When does an easement by necessity end?

Answer 18

once the necessity itself ends

Question 19

What are 2 elements required by the creation of easements by necessity?

Answer 19

1. severance of title

2. strict necessity

Question 20

What is severance of title for the creation of easements by necessity?

Answer 20

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

Question 21

What is the majority view with strict necessity in easements?

Answer 21

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

Question 22

what are the 2 factors to determining when there is a land-lock for strict necessity in easements?

Answer 22

1. a parcel must be entirely surrounded by privately owned land, without touching any public road
2. the owner must not hold and easement or other legal right of access to cross the adjoining land to reach an public road

Question 23

What is the minority view with strict necessity in easements (3rd restatement of property)?

Answer 23

only requires reasonable necessity for the easement - the easement must be convenient or beneficial to the normal use and enjoyment of the dominant land

Question 24

What are the 8 factors that determine the implications of an easement?

Answer 24

1. whether the claimant is the conveyor or the conveyee
2. the terms of the conveyance
3. the consideration given for it
4. whether the claim is made against a simultaneous conveyee
5. the extent of necessity of the easement or the profit to the claimant
6. whether reciprocal benefits result to the conveyor and the conveyee
7. the manner in which the land was used prior to the conveyance
8. the extent to which the manner of prior use was or might have been known tot he parties.

Question 25

Can an easement appurtenant be extended by the dominant estate?

Answer 25

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

Question 26

What are the 3 fundamental principles applicable to a request for an easement injunction?

Answer 26

1. it is equitable and addressed in sound 2. vested with the broad discretionary power to shape injunctive relief to fit the particular facts and circumstances to the case at hand. 3. actual and substantial injury sustained by the person seeking the injunction

Question 27

What is important about the location of an easement once its established?

Answer 27

the location of an easement, once fixed by the parties cannot be changed by the servient owner without permission of the dominant owner

Question 28

What are the 4 things the Restatement (3rd) of Property say about a change in location of an easement?

Answer 28

It grants the servient owner the right to change the location of an easement, as his expense, if the change does not: 1. significantly lessen the utility of the easement, 2. increase the burdens on the owner of the easement in its use and enjoyment, 3. increase the burdens on the owner of the easement in its use and enjoyment, or 4. frustrate the purpose for which the easement was created.

Question 29

What is a negative easement?

Answer 29

the right of the dominant owner to stop the servient owner from doing something on the servient land

Question 30

How are negative easements usually enforced?

Answer 30

usually covered by zoning

Question 31

What are the 4 types of negative easements?

Answer 31

1. blocking windows/light 2. interfering with air flow 3. removing support of building 4. interfering with the flow of water

Question 32

What are the 3 things needed to make an easement license irrevocable?

Answer 32

1. reasonable reliance 2. with knowledge of the licensor 3. expend resources with knowledge of licensor

Question 33

What are the 4 types of easements in general?

Answer 33

1. Affirmative 2. Negative 3. Appurtenant 4. In gross

Question 34

What is the one stock rule that applies to easements in gross?

Answer 34

The owners must use it as one - no unilateral decisions

Question 35

What are the 4 types of easements that can be created?

Answer 35

1. Express 2. Implied 3. Prescriptive 4. Estoppel

Question 36

What is an express easement?

Answer 36

It is one that has been written down granting or reserving

Question 37

What is an implied easement?

Answer 37

where it was once owned by a single owner can be appurtenant or in gross

Question 38

What is a prescriptive easement?

Answer 38

when an individual has used the land in a certain way for a number of years. adverse possession considerations here

Question 39

what is easement by estoppel?

Answer 39

when there is oral permission through a license - it Is revocable

Question 40

What are the 7 factors to the termination of an easement?

Answer 40

1. release 2. expiration by necessity 3. merger 4. estoppel (because its revocable) 5. AP/prescription 6. Abandonment 7. Alteration

Question 41

What are the 2 considerations in the scope and meaning of easements?

Answer 41

1. look at the intent of the parties - written and circumstantial 2. Is it reasonably burdensome?

Question 42

When asking if express an implied easements are unreasonably burdensome where would one look?

Answer 42

Express - look at the contract and the circumstances Implied - look at the contract and the circumstances as well determining the extent of the necessity

Question 43

How can easements change?

Answer 43

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

Question 44

The MO take on easement by estoppel?

Answer 44

it is allowed