Easements Flashcards
Easement in gross
benefiting a particular person and not a particular piece of land. ● The beneficiary need not, and usu. does not, own any land adjoining the servient estate.
Easement by necessity
An easement created by operation of law because the easement is indispensable to the reasonable use of nearby property, such as an easement connecting a parcel of land to a road.
Easement appurtenet
created to benefit another tract of land, the use of easement being incident to the ownership of that other tract. — Also termed
Affirmative Easement
Entitles the easement holder to enter the servient tenement for a specified purpose
Negative Easement
Entitles the holder to compel the possessor of the servient tenement to refrain from using his property in a specified manne
Profit
A right to enter another’s land to remove its product, such as minerals or crops.
Ways an easement can be created
- Easement by Express Grant
- Easement by Implication
- Easement by Necessity
- Easement by Prescription
Easements creation - mnemonic
- Mnemonic: Easements Incorporate People’s Needs
a. Express Grant b. Implication c. Prescription d. Necessity
Easement by Express Grant (creation of easements)
a. A written conveyance may expressly grant or reserve an easement, but it must be reasonably clear regarding the scope of the easement. Express easements must comply with the statute of frauds. b. Expressly granted easements will be valid if the parties unambiguously include the following elements: i. Location ii. Dimensions iii. Special uses allowed or disallowed
Easement by Implication (creation)
In order for an easement by implication to arise, the dominant and servient estates must have been owned by the same person at some earlier time.
a. The use, claimed to be an easement by implication, must have existed prior to the time when the two estates were severed from each other. b. It must also have been apparent and continuous prior to the severance. c. Lastly, it must be reasonably necessary for the use and enjoyment of the dominant tenement.
Easements by necessity - showing of necessity burden
When the original owner claims that he impliedly reserved an easement at the time of severance a showing of strict necessity is required, whereas a lesser showing of necessity is required when a grantee claims an implied easement.
Easement by necessiy (creation)
Will arise only if the two parcels of land were, at one time, owned by the same person. No prior use is required, but a showing of strict necessity is mandatory. Example: A parcel of land is so situated that it is impossible for the owner to have access to a road without a right of way across someone else’s property.
Easement by prescription (creation)
a. An easement by prescription will arise when the claimant’s use is open, notorious, and continuous for the period of time required by the statute of limitations. The statute of limitations will begin to run when the servient tenement’s owner gains a cause of action against the adverse user. b. Easements by prescription are “close relatives” of adverse possession, and similar rules regarding the disability and tacking doctrines will apply.
Transfer of easements apportunent
An easement appurtenant automatically passes to the new owner upon conveyance of either the dominant or the servient tenement, unless the parties agree otherwise.
Easement by estoppel
A court-ordered easement created from a voluntary servitude after a person, mistakenly believing the servitude to be permanent, acted in reasonable reliance on the mistaken belief.
Implied easement
implied easement. (1867) An easement created by law after an owner of two parcels of land uses one parcel to benefit the other to such a degree that, upon the sale of the benefited parcel, the purchaser could reasonably expect the use to be included in the sale
Can an easement be used in connection with a nondominant estate? (2view)
Trad. Rule: cant, subject to injunction
Brown rule: yes, Nondominant property may also enjoy use of an easement, although technically improper, if it is found to be the more equitable solution in a proceeding for an injunction, which is based on the discretion of the trial court.
Can a serviant tenement change location of easement agreed on?
Trad. Rule- no, need permission from dom.
RST: yes, doesnt burden the utility or purpose of the easement
Prescritive easements are narrower than easements by grant, implication, or necessity. Must be:
Consitent with the gen. use that gave right to the easement
E.g. Easement by pedestrians cannot be broadened to include cars
Surcharge (adding to) an easement not appropriate if
is prevented if assignees exercise the right as “one stock
Miller
Mountjoy rule
the right of a grantee may be assigned, but if to more than one person, the two parties must work together
Modern view
Easements in gross are assignable when (2 sources)
Rst: all easements in gross are assignable
Maj: yes, if parties intended
What are the only easements in gross not assignable?
Recreational (hunting, boating, fishing, camping) for fear it puts too much burden on serviant estate
Are assignable easements in gross divisible?
Gen rule: yes, if creating instrument says so; or
When easement is exlusive (only 1 person)
Mounjoy rule v. Modern law
Rst: easement in gross may be divided unless contra the intent of the parties creating easemtn; or divison unreasonable increases burden on serviant esatate
A, owner of Blackacre, conveys an easement over Blackacre to B, which A used to own, but subsequently sold to C. A then conveys easement over blackacre to C. Who, if any, has easement over blackacre?
HN5 An easement in gross does not require unity of title and is independent of any ownership of land. An easement is appurtenant when the easement is created to benefit the possessor of the land in his use of the land. Whether an easement is in gross or appurtenant is a question of law for the court and depends upon the terms of the grant, the nature of the right, the surrounding circumstances, and the parties’ intent. The law favors construction of easements as appurtenant rather than in gross.The creation of an easement appurtenant requires that the grantee of the easement own the dominant estate, the land benefitted by the easement. This principle is known as “unity of title.” Without unity of title, no easement appurtenant can be created
Right to pass over land for ingress, egress. Appurtanet or gross?
Where a right to pass over land is given for ingress and egress, the courts construe the easement as appurtenant rather than in gross. On the other hand, a typical easement in gross is for a railroad, utility lines, or pipelines.
Lost grant theory
The owner of land is presumed
Affirm or neg easement? O grants A right of way across O’s property
Affirmative
-Owner of easement has a right to go onto the land of another and do some act.
Ex. O grants A right of way across O’s property; A has an affirmative easement.
Whats a negative easement?
Owner of easement can prevent the owner of the servient land from doing some otherwise legal act on the servient land.
Limited to easements for light, air, lateral support, or flow of an artificial stream.
Some courts have held easement for view to be a valid negative easement.
Limited because most other situations can be handed by equitable servitudes.
Appurtanent or in gross?O grants A an easement to cross O’s land to get to a public road.
Appurtenant
An incident of ownership of the dominant tenement, and is not personal to the original holder.
Ex. O grants A an easement to cross O’s land to get to a public road.
Appurtant easment and tranferability
Passes with the possession of the dominant tenement.
No need for deed to expressly mention easement.
Most states presume in gross? Or appurtanent?
Most states have a constructional preference for easements appurtenant over easements in gross.
An easement appurtenant increases the value of the dominant land, presumably by more than it decreases the value of the servient land.
An easement in gross does not increase the value of any land and decreases the value of the servient land.
In gross or appurtanent?O grants A an easement to erect and maintain billboards, or to lay utility lines.
Personal to the holder and independent of his possession of any land.
Ex: O grants A an easement to erect and maintain billboards, or to lay utility lines.
In gross easment and tranferability
- Because there is no dominant tenement, successors to the holder’s land do not have the easement.
- Most courts hold that successors to the servient tenement are subject to the easement.
- Only commercial easements in gross are generally assignable.
3 ways to create easement?
- Express
- Easement by Implication (a.k.a. By Operation of Law
- Creation by Prescription
Express Easements; oral or written?
).
Must satisfy the Statute of Frauds (be in writing, signed by grantor
-If not in writing, only oral, grantee has a license to use the land.
A license is revocable at any time unless there is an estoppel claim.
Express easements May be created by grant or by reservation. Difference?
- Express Grant - O conveyed a right of way over O’s land to A.
- Reservation - O conveyed Blackacre to A but reserved a right of way across the land.
Express easements: assignability to 3rd party?
- Common law does not allow reservation to a 3rd party.
- Minority of jurisdictions allow now.
- Covenants, however, can be used to benefit a 3rd party.
Easement by implication: oral or written?
Created by operation of law, not by written instrument.
2 types of impled easements?
- Easement Implied from Prior Use
2. Easement Implied from necessity
Easement implied by prior use: purpose
1.Looking to give effect to the original intent of the owners.
Since they forgot/failed to expressly negotiate these uses and they would have if they had thought about them, courts can give effect to these intentions.
Easement implied by prior use: elements
1.The two parcels were under single ownership,
2. There was a permanent or continuous pre-subdivision use,
Courts interpret continuous to include a permanent physical change in the land for a particular use.
Ex. The improvement of a roadway by paving is a permanent change in the land, and thus a continuous use, even if the road is not used every day.
3.The use was apparent upon reasonable inspection, AND
A non-visible use may be apparent.
If could have been discovered by hiring someone to do an inspection, held to be apparent.
Ex. Underground drains may be apparent if the surface connections would put a reasonable person on notice of their presence.
5. The easement is reasonably necessary.
Most jurisdictions look at reasonable necessity, not strict necessity.
Relevant factors include cost and difficulty of establishing an alternate use.
Easement Implied from Necessity (IE)
Reasons for easements by necessity
Public policy requires a way of access to each separate parcel of land.
Because access is essential to use, the parties intended to create an easement but overlooked putting it in the deed.
Easement Implied from Necessity: elements
- The dominant tenement is landlocked from public road or some utility line.
- The servient and dominant tenements were owned by a single owner at the time of the conveyance giving rise to the necessity, AND
- The necessity must exist at the time the property is divided.
Necessity (IE) degree
An easement is necessary.
1.Common law required absolute necessity.
2.Most courts today require a showing of strict necessity; minority require only reasonable necessity.
3.Most states do not require the dominant tenement to pay for the necessary easement.
Ex. Reese v. Borghi (p.734)
Land was sold to two parties, landlocked one party. Party used a path to get to road; path was blocked by a house built by other party.
Held that easement by necessity existed. Does not matter if landlocked party knew their land would be landlocked at the time they bought it. An easement by necessity cannot be negated by the express intent of the parties.
Creation by prescription
Criteria
Actual
Adverse
Majority do not look at state of mind for good faith.
Some require good faith belief that he has the right to use the land.
Fails if the use is permissive.
Ex. Finley v. Botto (p.741)
Two families owned apartment buildings 4 feet apart. Area between was used by tenants in one building to get to laundry room. Other building constructed a wall where the walkway was.
Held that since the use of the land for a walkway was permissive, no prescriptive easement exists. Courts look to the relationship between the parties. If neighborly goodwill is found, not adverse.
Open and notorious; AND
Use must be made with no attempt of concealment.
For underground, non-visible uses, if it could be reasonably discovered on inspection, this requirement is satisfied.
Continuous and uninterrupted for the prescriptive period.
Continuous does not mean constant. Seasonal uses are found to be continuous (picking raspberries on land during raspberry season).
Tacking is allowed to meet the statutory time requirement; same requirements for tacking as adverse possession usually (privity).
How to reset the clock for prescriptive easements
Easiest for a landowner to defeat a prescriptive easement by completely allowing the use one day out of a year.
Insufficient in some jurisdictions to allow use, must disallow.
Some jurisdictions find that a protest by the landowner to the prescriptive user to be sufficient to break the uninterrupted requirement, reset the clock.
Other jurisdictions require the landowner to actually stop the use for a day.
Can always bring suit for injunction to reset clock.
Cannot use prescription to get a negative easement.
This is because it would be unfair to give a would-be dominant tenement a prescriptive right that B could not prevent from arising.
Determining/Widening the Scope of Easements
General idea
The scope of an easement mostly depends on the intention of the parties.
Methods of determining this intent sometimes vary according to the type of easement.
Scope of easement: express easement
Express Easements
1.Courts will look to the language of the instrument, together with surrounding circumstances to determine parties’ intent.
2.Easements of way (access) are given a scope that permits it to meet the needs of the dominant tenement as it normally develops.
Ex. Faus v. City of Los Angeles (p.726)
Private individuals gave an easement to the city to put a light rail tracks on their land to provide transportation service to the city. Light rail ran for a while; later, rail was scrapped, city constructed a road on the land.
Held that the conveyance should be assumed to have intended to accommodate future needs. The net effect is the same, improvement of public transportation/access
Scope of easement:Implied Easements
- Easements Implied from Existing Use
- Scope is generally the same as an express easement.
- Changes that reasonably might have been expected or that are necessary to preserve the utility of the easement are permitted. - Easements Implied from Necessity
- The extent of necessity determines the scope.
Scope of easements: prescription
Easements by Prescription
1.More difficult to increase the burden of an easement by prescription than any other kind of easement.
2.The uses that gave rise to the easement can continue, but there is no basis for assuming the parties intended the easement to accommodate future needs.
Ex. O might not have objected to A crossing O’s land to pick apples on A’s land but would have objected to A driving a truck onto O’s land to pick apples.
Look to see whether there is an increase in burden on the servient land.
Subdivision of Dominant Easements
Appurtenant Easements
A. If the dominant estate is subdivided, each subdivided lot has a right to easements appurtenant to the dominant estate.
CAVEAT: However, the servient estate is not to be burdened to a greater extent than was contemplated at the time the easement was created and is necessary to accommodate normal development of the dominant estate.
Courts are split; one held that subdivision of 4 lots into 40 created unreasonable burden. Other held that subdividing 126-acre tract not unreasonable burden.
Subdivision of Dominant Easements
In gross
- Can be divided or apportioned only if in gross easement is exclusive (easement holder is the only one who enjoys the right).
- Cannot be divided or apportioned if the in gross easement is non-exclusive (easement holder and the servient owner both enjoy the use granted in the easement).
Ex. Easement holder of right to hunt on land can only bring others on the land to hunt if the easement is exclusive.