Easements

Question 1

Easement

Answer 1

creates a non-possessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement

A is given a right to enter onto B’s land and B may not interfere with that right

• there is always a burdened parcel of land, the land over, under, or on which the easement runs
• The burden attaches to the land and passes with it to future owners
• needs owner express agreement or strict legal requirements

Question 2

Affirmative easements

Answer 2

entitles the holder to enter and use another’s land
- The key aspect of this entitlement is the right of presence - over a road or a path, the laying or use of a pipe, or the running of a utility wire - on another’s land.

Question 3

Negative Easements

Answer 3

gives the holder the right to prevent an owner of land from using that land in a certain way

• often characterized as “veto” rights in the sense that they allow one landowner to veto the plans of another if those plans violate the terms of the negative easement.
• No matter how strong the desire of a landowner to gain a negative easement over the land of an adjoining landowner, that desire will not be enough. The servient landowner must give his or her permission for a negative easement to be created.

Question 4

Appurtenant easements

Answer 4

involves two parcels of land: one that is benefited by the easement and one that is burdened by it

• an easement over the servient (burdened) parcel that benefits the dominant parcel.
• benefit of the easement will transfer with the land to the new owner
• runs with the land
• presumption – greater the usefulness or enhancement, the stronger is the presumption that the easement is appurtenant

Question 5

Easements in Gross

Answer 5

involves only one piece of land, the burdened piece.

The benefit in an easement in gross inures to a person rather than to a piece of property.
- easement over the servient parcel is for the benefit of a person (human or corporate) without reference to his ownership of land ex. utility companies

Question 6

Exclusive easements

Answer 6

sole use

Question 7

Non-exclusive easements

Answer 7

one does not have the right to exclusive use

Question 8

Express easements

Answer 8

Most common type of easement
- They are voluntarily created by the affected parties, the servient landowner, and either the dominant landowner (if an easement appurtenant) or the benefited person (if an easement in gross).
- subject to SoF –> must be in a writing signed by the grantor (owner of the servient estate)
• identification of the grantor (owner of the servient estate);
• identification of the grantee (the dominant estate if an easement appurtenant or the individual intended to have the benefit of the use of the servient estate if an easement in gross);
• the intention to create the easement; and
• identification of the servient land.
(opposite of easements implied by law)

Question 9

dominant parcel

Answer 9

benefited

Question 10

implied Easement from Prior Existing Use

Answer 10

When an owner has used his land in a manner that creates a quasi-easement and then conveys either the quasi-dominant or quasi-servient parcel (or both), the law is concerned with the intention of the parties to the conveyance.

– the parties will be presumed to have intended the continuation of any use that is reasonably necessary and beneficial to the dominant parcel.

Question 11

Traditional four basic requirements for recognition of an implied easement from prior existing use

Answer 11

1. Common Ownership : There must have been a common owner of the quasi-dominant and quasi-servient parcels.
2. Regular and Apparent Use: The common owner must have made regular (continuous or repetitive) and apparent (with a reasonable inspection it could be discovered) use of the quasi-servient parcel for the benefit of the quasi-dominant parcel.
3. Severance: There must have been a severance of the common ownership by transfer of the dominant or servient parcel or by simultaneous transfer of both parcels to different owners.
4. Reasonably Necessary Continuance: Continuation of the prior existing use must be reasonably necessary to the use and enjoyment of the dominant parcel.
   Courts will consider: the burden on the dominant owner to create an alternate to the existing use if that use were ended; and
   the burden on the servient owner if the prior use is allowed to continue

Question 12

implied Easement from Prior Existing Use

Answer 12

When an owner has used his land in a manner that creates a quasi-easement and then conveys either the quasi-dominant or quasi-servient parcel (or both), the law is concerned with the intention of the parties to the conveyance.

• • the parties will be presumed to have intended the continuation of any use that is reasonably necessary and beneficial to the dominant parcel.
• recognized only where the grantor has no other way of gaining the service (in the case of utilities) or access (in the case of a road). –> strict necessity

Question 13

Traditional four basic requirements for recognition of an implied easement from prior existing use

Answer 13

1. Common Ownership : There must have been a common owner of the quasi-dominant and quasi-servient parcels.
2. Regular and Apparent Use: The common owner must have made regular (continuous or repetitive) and apparent (with a reasonable inspection it could be discovered) use of the quasi-servient parcel for the benefit of the quasi-dominant parcel.
3. Severance: There must have been a severance of the common ownership by transfer of the dominant or servient parcel or by simultaneous transfer of both parcels to different owners.
4. Reasonably Necessary Continuance: Continuation of the prior existing use must be reasonably necessary to the use and enjoyment of the dominant parcel.
   Courts will consider: the burden on the dominant owner to create an alternate to the existing use if that use were ended; and
   the burden on the servient owner if the prior use is allowed to continue

Question 14

implied easement by grant

Answer 14

when the common owner first transfers the dominant parcel and retains the servient parcel

• gives the transferee more than what was transferred on the face of her deed

Question 15

implied easement by reservation

Answer 15

when the common owner first transfers the servient parcel and retains the dominant parcel

• gives the grantee less than what her deed purports to convey
• less likely to be recognized

Question 16

3d Restatement implied easement from prior existing use

Answer 16

common ownership, prior use, and severance
AND
that “the parties had reasonable grounds to expect” that the prior use would be continued

– focuses on the extent of the prior use, the reasonable necessity of continuing it, and the apparentness of the use at the time of severance. removes the requirement that the prior use be known or apparent if the prior use was of an underground utility.

Question 17

Types of Instruments creating express easements

Answer 17

(1) the Deed of Land in which an easement is granted or reserved or
(2) the Deed of Easement.
- - used when the easement is to be created over the land in a “stand alone” transaction

Question 18

Easements by Express Reservation

Answer 18

convey the parcel to a new owner and “reserve” an easement over that parcel for the benefit of previous owner’s retained parcel.

Question 19

Express Easement by Grant

Answer 19

an easement given to the grantee over the grantor’s land

Question 20

Reservation of Easements in Favor of a Third Party

Answer 20

• American jurisdictions are split on whether an easement may be reserved in favor of a third party (NY doesn’t)

Question 21

Implied Easement of Necessity

Answer 21

when, as a result of an owner of land transferring part of his land, either the transferred part or the retained part is landlocked such that the owner of that parcel cannot gain access to it.
- recognized solely for the purpose of permitting access to landlocked land

Question 22

Circumstances Required for Implication of the Easement of Necessity

Answer 22

1. ) prior common ownership of the dominant and servient parcels;
2. ) severance of the common ownership; and
3. ) necessity for access off landlocked land at the time of severance.

Question 23

implied easement of necessity by grant

Answer 23

the common owner transfers the landlocked land, the grantor retains the servient parcel.

Question 24

implied easement of necessity by reservation

Answer 24

common owner retains the landlocked parcel, the grantee is transferred the servient parcel

Question 25

absolute or strict necessity

Answer 25

landowner claiming the easement must show that he is completely without access.

Even if he shows that other means of access are extremely costly or inconvenient, this will not be enough to satisfy the heightened standard of strict necessity.

Question 26

reasonable necessity

Answer 26

party claiming the easement need only show that the burden of using other possible means of access is significantly greater than the limited burden of implying the easement over the servient parcel

– must show something more than that the easement would be more convenient to him than other alternatives

Question 27

Timeframe for Accessing Necessity

Answer 27

necessity must exist at the time of severance of the dominant and servient parcel

Question 28

Continuation of the Implied Easement

Answer 28

Once the required necessity is shown and the easement is implied, the easement will exist as long as the necessity exists.

If the necessity ends, the easement ends (although courts will give the dominant parcel owner a reasonable time to build an alternate road).

Question 29

Statutory Easements of Necessity

Answer 29

require a showing of necessity and further require that the landlocked owner (the dominant owner) pay compensation to the owner over whose land the access way will run (the servient owner). Such statutory easements do not require prior common ownership of the dominant and servient estate.

Question 30

Easement or license

Answer 30

• instrument says license = license
• instrument says easement and requirements are met = easement
• the period of time for which the permission is given (the shorter the period of time, the more likely the parties intended a license rather than an easement);
• the amount of money paid by the person to whom the permission is given (a relatively large amount of money paid more strongly suggests an easement);
• the right of the recipient of the permission to build improvements or exercise control over the licensor’s land (suggesting an easement).

Question 31

Types of licenses

Answer 31

• you drive to the airport and park your car in the parking lot
• you buy a ticket to a movie and choose your seat
• you buy a ticket to a concert and your seat is designated
• you buy a ticket to an amusement park.
• licenses involve neighboring landowners who agree that one can use the other’s land. (looks like easement but doesn’t meet the requirements)

Question 32

Easements by Estoppel

Answer 32

An irrevocable license

• if revocability rule will work an undue hardship on the party depending upon the continued permission to use the servient landowner’s land, many courts are willing to exercise their equitable powers to estopp the servient landowner from withdrawing his or her permission.
• the parties must reasonably foresee that the user would substantially change his position on the faith that his right to cross over his neighbor’s land would not be withdrawn and the user must in fact substantially change his position in reasonable reliance on that belief.
• A minority of jurisdictions refuse to recognize easements by estoppel.

Question 33

Types of Negative Easements

Answer 33

1. light,
2. air,
3. support
4. access to water in an artificial stream.
5. easements of view,
6. solar easements,
7. conservation easements.

Question 34

The Negative Easement of Support

Answer 34

allows the adjoining landowner to prohibit excavation by the servient landowner in order to protect against circumstances that might cause a collapse, especially where those circumstances would not lead to liability by the excavating landowner

Question 35

The Negative Easement of Light

Answer 35

the owner of the servient or burdened parcel promises on behalf of himself and his successor owners that he will not construct a building or plant vegetation on the parcel that will block light to windows on buildings on the adjacent dominant parcel.

Question 36

The Negative Easement of Air

Answer 36

holder of easement may forbid the owner of the parcel burdened by the easement from building a structure that interferes with the flow of air onto the benefited parcel

Question 37

The Negative Easement of Water From an Artificial Stream

Answer 37

This is the rarest of negative easements

ex. if an owner of a parcel of land wished to assure herself an adequate supply of water from an irrigation canal that flowed over the land of others, she might seek a negative easement giving her “an enlarged benefit from a flow of water by excluding the servient owner from the share of water that the servient owner would otherwise receive.”

Question 38

The Negative Easement of View

Answer 38

Modernly, A has the option of seeking an easement of view from B. While B is not obliged to grant A this easement, he may be willing to do so if his plans for use and development of his land are not substantially defeated. The negative easement would allow B all lawful uses of his land except those that obstruct or interfere with A’s view.

Question 39

The Solar Easement

Answer 39

will prevent that landowner and his successors from building structures or maintaining tall vegetation that blocks sunlight from reaching the dominant parcel.

Question 40

The Conservation Easement

Answer 40

imposing limitations or affirmative obligations the purpose of which include retaining or protecting natural, scenic or open-space values of real property, assuring its availability for agricultural, forest, recreational or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving historical, architectural, archeological or cultural aspects of real property.”

• conservation easements are easements in gross rather than easements appurtenant.

Question 41

Prescriptive Easement

Answer 41

arise out of open, notorious, adverse and continuous use of another person’s land for the statutorily determined period of time
- do not require common ownership of the dominant and servient parcels at their inception.

Question 42

Prescriptive easement elements

Answer 42

1. ) open and notorious use, which is
2. ) adverse to the servient landowner, and is
3. ) continuous and uninterrupted
4. ) for the required prescriptive period (typically range from five to twenty years).

A majority of jurisdictions hold, however, that if the claimant establishes uninterrupted, continuous and open use, a rebuttable presumption arises that that use was adverse

If the claimant is claiming only a non-exclusive easement, his prescriptive use is not required to be exclusive.

Question 43

The Requirement of Open and Notorious Use

Answer 43

the servient landowner must have had a reasonable opportunity to know of the claimant’s use during the prescriptive period

Question 44

The Requirement of Adversity

Answer 44

is met when the claimant of an easement by prescription uses the property of another claiming the right to use it

• A non-permitted use

Question 45

The Requirement of Claim of Right

Answer 45

claimant of a prescriptive easement must have claimed the right to use the easement during the prescriptive period

Question 46

The Requirement of Uninterrupted Use

Answer 46

In order to interrupt the “adverse” use of his land the owner must either physically interfere (by blocking it, for example) or by bringing a successful legal action to terminate the use.

Question 47

The Requirement that the Use Be Continuous

Answer 47

claimant’s use be regular and consistent with the claim that he is making

Question 48

Tacking

Answer 48

The law allows the “tacking” of prescriptive use by successive users if there is “privity” between them

Question 49

Express Termination of Easements

Answer 49

1. The instrument creating the easement may expressly provide for its termination.
2. The dominant party, the holder of the benefit of an easement in gross or the owner of the estate benefited by an easement appurtenant, may “release” the easement in a separate written document.

Question 50

Termination in a Later Instrument Through Release

Answer 50

the holder of the benefit of the easement is the party who “releases” this right

Question 51

Termination of Easements Through Operation of Law

Answer 51

Termination through Lack of Notice
- when the servient parcel is transferred to a purchaser who takes without actual notice, record notice or inquiry notice of the existence of the easement
- applies only to lack of notice on the part of the owner of the burdened parcel. An easement is not terminated when a new owner of the dominant parcel takes without notice of the benefit.
Merger
- when ownership of the benefit of an easement and the burden of an easement come into the same ownership

Question 52

Termination through Prescription

Answer 52

servient landowner meets prescriptive requirements

Question 53

Termination Through Estoppel

Answer 53

majority:
1) that the easement holder have, in essence, promised not to enforce or further claim the right to use the easement,

2) that the servient owner have reasonably relied on that promise, and
3) that the servient owner have acted to his detriment (usually by the expenditure of money) on that promise.

Question 54

Termination Through Abandonment

Answer 54

when the dominant landowner by physical conduct manifests an intention never to use the easement again.

• mere nonuse by the easement holder is never treated as an abandonment.
• dominant landowner must do something completely inconsistent with any further claim to the easement.

Question 55

Termination of Easements of Necessity

Answer 55

where the dominant landowner in no longer landlocked

- or by the other means of termination

Question 56

Termination by condemnation

Answer 56

government exercises its power of eminent domain to take title to the servient parcel. The government may, if it chooses and if it compensates the easement holder for her loss, condemn the easement as well and thereby terminate it.

Question 57

Termination by destruction of the burdened portion of the servient estate

Answer 57

will occur only where the easement is to use a structure and the structure is destroyed through no fault or action of the servient landowner.