Easements

Question 0

Easement in gross

Answer 0

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.

Question 1

Easement by necessity

Answer 1

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.

Question 2

Easement appurtenet

Answer 2

created to benefit another tract of land, the use of easement being incident to the ownership of that other tract. — Also termed

Question 3

Affirmative Easement

Answer 3

Entitles the easement holder to enter the servient tenement for a specified purpose

Question 4

Negative Easement

Answer 4

Entitles the holder to compel the possessor of the servient tenement to refrain from using his property in a specified manne

Question 5

Profit

Answer 5

A right to enter another’s land to remove its product, such as minerals or crops.

Question 6

Ways an easement can be created

Answer 6

1. Easement by Express Grant
2. Easement by Implication
3. Easement by Necessity
4. Easement by Prescription

Question 7

Easements creation - mnemonic

Answer 7

5. Mnemonic: Easements Incorporate People’s Needs

a. Express Grant b. Implication c. Prescription d. Necessity

Question 8

Easement by Express Grant (creation of easements)

Answer 8

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

Question 9

Easement by Implication (creation)

Answer 9

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.

Question 10

Easements by necessity - showing of necessity burden

Answer 10

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.

Question 11

Easement by necessiy (creation)

Answer 11

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.

Question 12

Easement by prescription (creation)

Answer 12

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.

Question 13

Transfer of easements apportunent

Answer 13

An easement appurtenant automatically passes to the new owner upon conveyance of either the dominant or the servient tenement, unless the parties agree otherwise.

Question 14

Easement by estoppel

Answer 14

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.

Question 15

Implied easement

Answer 15

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

Question 16

Can an easement be used in connection with a nondominant estate? (2view)

Answer 16

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.

Question 17

Can a serviant tenement change location of easement agreed on?

Answer 17

Trad. Rule- no, need permission from dom.

RST: yes, doesnt burden the utility or purpose of the easement

Question 18

Prescritive easements are narrower than easements by grant, implication, or necessity. Must be:

Answer 18

Consitent with the gen. use that gave right to the easement

E.g. Easement by pedestrians cannot be broadened to include cars

Question 19

Surcharge (adding to) an easement not appropriate if

Answer 19

is prevented if assignees exercise the right as “one stock

Miller

Question 20

Mountjoy rule

Answer 20

the right of a grantee may be assigned, but if to more than one person, the two parties must work together
Modern view

Question 21

Easements in gross are assignable when (2 sources)

Answer 21

Rst: all easements in gross are assignable
Maj: yes, if parties intended

Question 22

What are the only easements in gross not assignable?

Answer 22

Recreational (hunting, boating, fishing, camping) for fear it puts too much burden on serviant estate

Question 23

Are assignable easements in gross divisible?

Answer 23

Gen rule: yes, if creating instrument says so; or

When easement is exlusive (only 1 person)

Question 24

Mounjoy rule v. Modern law

Answer 24

Rst: easement in gross may be divided unless contra the intent of the parties creating easemtn; or divison unreasonable increases burden on serviant esatate

Question 25

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?

Answer 25

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

Question 26

Right to pass over land for ingress, egress. Appurtanet or gross?

Answer 26

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.

Question 27

Lost grant theory

Answer 27

The owner of land is presumed

Question 28

Affirm or neg easement? O grants A right of way across O’s property

Answer 28

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.

Question 29

Whats a negative easement?

Answer 29

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.

Question 30

Appurtanent or in gross?O grants A an easement to cross O’s land to get to a public road.

Answer 30

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.

Question 31

Appurtant easment and tranferability

Answer 31

Passes with the possession of the dominant tenement.

No need for deed to expressly mention easement.

Question 32

Most states presume in gross? Or appurtanent?

Answer 32

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.

Question 33

In gross or appurtanent?O grants A an easement to erect and maintain billboards, or to lay utility lines.

Answer 33

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.

Question 34

In gross easment and tranferability

Answer 34

1. Because there is no dominant tenement, successors to the holder’s land do not have the easement.
2. Most courts hold that successors to the servient tenement are subject to the easement.
3. Only commercial easements in gross are generally assignable.

Question 35

3 ways to create easement?

Answer 35

1. Express
2. Easement by Implication (a.k.a. By Operation of Law
3. Creation by Prescription

Question 36

Express Easements; oral or written?

).

Answer 36

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.

Question 37

Express easements May be created by grant or by reservation. Difference?

Answer 37

1. Express Grant - O conveyed a right of way over O’s land to A.
2. Reservation - O conveyed Blackacre to A but reserved a right of way across the land.

Question 38

Express easements: assignability to 3rd party?

Answer 38

1. Common law does not allow reservation to a 3rd party.
2. Minority of jurisdictions allow now.
3. Covenants, however, can be used to benefit a 3rd party.

Question 39

Easement by implication: oral or written?

Answer 39

Created by operation of law, not by written instrument.

Question 40

2 types of impled easements?

Answer 40

1. Easement Implied from Prior Use

2. Easement Implied from necessity

Question 41

Easement implied by prior use: purpose

Answer 41

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.

Question 42

Easement implied by prior use: elements

Answer 42

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.

Question 43

Easement Implied from Necessity (IE)

Reasons for easements by necessity

Answer 43

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.

Question 44

Easement Implied from Necessity: elements

Answer 44

1. The dominant tenement is landlocked from public road or some utility line.
2. The servient and dominant tenements were owned by a single owner at the time of the conveyance giving rise to the necessity, AND
3. The necessity must exist at the time the property is divided.

Question 45

Necessity (IE) degree

Answer 45

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.

Question 46

Creation by prescription

Answer 46

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.

Question 47

Determining/Widening the Scope of Easements

General idea

Answer 47

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.

Question 48

Scope of easement: express easement

Answer 48

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

Question 49

Scope of easement:Implied Easements

Answer 49

1. 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.
2. Easements Implied from Necessity
   - The extent of necessity determines the scope.

Question 50

Scope of easements: prescription

Answer 50

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.

Question 51

Subdivision of Dominant Easements

Appurtenant Easements

Answer 51

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.

Question 52

Subdivision of Dominant Easements

In gross

Answer 52

1. Can be divided or apportioned only if in gross easement is exclusive (easement holder is the only one who enjoys the right).
2. 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.

Question 53

Changes in the Location/Width of the Easement

Majority Rule

Answer 53

1. If an easement has been granted in a specific location, the location cannot be changed by one party acting unilaterally even if there is no change in burden/convenience.
2. If the width of an easement is specified in the grant, or if it existed at the time of the grant so that it can be inferred that the parties intended it to remain the same width, the easement cannot be widened without the consent of the servient owner.

Question 54

Changes in location of easement: RST Minorirty rule

Answer 54

Restatement Rule
The servient owner may relocate the easement or make reasonable changes in its dimension when necessary to permit normal development of the servient estate, provided the changes do not unreasonably interfere with the easement holder’s use.

Question 55

Transfer of Easements

Easements Appurtenant

Answer 55

Easements Appurtenant

1. The benefits of any easements appurtenant are transferred with the land when the dominant land is transferred.
2. Easements appurtenant are thought of as attached to the dominant land.
   - Thus, even passes to adverse possessors.
   - The burdens of any easements appurtenant are transferred with the land when the servient land is transferred.
3. Does not matter if the easement is mentioned specifically in the deed.

Question 56

Transfer of Easements

In gross

Answer 56

At common law, courts held that the benefits of easements in gross were not assignable.
General rule now…
The benefits of a commercial easement in gross are assignable.
Would be unfair for a utility company to lose its easements when it merged with another company.
Exclusive commercial easement in gross may subdivide or apportion as long as not exceedingly greater burden on servient estate.
The benefits of a noncommercial easement in gross are generally nonassignable; they are only assignable if the parties so intend.

Question 57

reciprocal negative easement.

Answer 57

An easement created when a landowner sells part of the land and restricts the buyer’s use of that part, and, in turn, that same restriction is placed on the part kept by the landowner. ● Such an easement usu. arises when the original landowner creates a common scheme of development for smaller tracts that are carved out of the original tract. [Cases: Covenants 20; Easements 13.]

Question 58

Vertical privity

Answer 58

2. Privity between one who signs a contract containing a restrictive covenant and one who acquires the property burdened by it.

Question 59

horizontal privity. (

Answer 59

1968) Commercial law. The legal relationship between a party and a nonparty who is related to the party (such as a buyer and a member of the buyer’s family). [Cases: Sales 255.]

© 2011 West, a Thomson business
Bryan A. Garner, Editor in Chief

p. 1320

Question 60

In prop transaction, is consideration required?

Answer 60

No

Question 61

2 types of servitudes

Answer 61

Easements
Covenants

(2 minor forms are profits and licenses)

Question 62

2 types of covenants

Answer 62

Coventents eforceable at law(real covanents)

Covanents enforcable at equity(equitable servitudes)

Question 63

A is given the right to enter upon Bs land

Answer 63

Easement

Question 64

A is given the right to enforce a restriction on the use of Bs land

Answer 64

Negative easement, a real covanent, or an equitable servitude

Depending on the remedy sout

Question 65

A is given the right to enter Bs land and remove something attached to the land

Answer 65

Profit

Question 66

If its unclear what type of easement is intended by the parties, a _________ is presumed

Answer 66

An easement appurtenant

Question 67

Sellers reserved a easement for “the watering of livestock owned by the sellers”

Answer 67

Court construed easement appurtanemt

Question 68

Easements appurtanent require (2)

Answer 68

A dominent tenement

A servient tenement

Question 69

Appurtenant easements are usually transferable. The easement transfers along with ….

Answer 69

The dominent tenement to sucessive owners

Question 70

Becuase an easement in gross does not benifit any land, it involves

Answer 70

No dominent tenement, only a serviant tenement

Question 71

Easements and profits, being interests in land, are within the ______.

Answer 71

Statute of frauds

Question 72

conveyances that vest interests in third parties(church can use your parking lot)
Common law
Williard and Rst

Answer 72

Common law- grantor cannot reserve an intrest in a 3rd party
Modern- look to carry out grantors intent

In order to determine whether a court should apply the old common law rule to grants made prior to the courts decision, a balancing of equitable and policy considerations must occur. The court should examine the injustice of refusing to give effect to the grantor’s intent versus the result of failing to give effect to an individual’s reliance on the old common law rule and policy against disturbing settled titles.

Question 73

Willard court said easemnt can be reserved in favor of a 3rd party, but not excepted in favor of a thrid party. What is the diff..?

Answer 73

1. Reaervation- a provision in a deed creating some NEW servitude which didnt exist before as an independent intrest
2. Exception- a provision in a deed that excludes from the grant some PREEXISTING servitude on the land.

Question 74

O conveys Blackacre to A ______ a 20 ft easement of way along the south boundry of blackacre. The easement did not _________ prior to the conveyance by O.

Reservation or exception?

Answer 74

Reservation. Didnt exist as an independent intreset prior

Question 75

O conveys Blackacre to A reserves a 20 ft easement of way along the south boundry of blackacre. The easement did not exist prior to the conveyance by O.

A then conveys blackaxre to B, except for the the easement previously reserved to O.

Answer 75

Exception. Cannot be conveyed to a thrid party.

Question 76

A license

Answer 76

An pral or written permission given by the occupant of land allowing licensee to do some act that otherwise would be a tresspass. Ie

• plumber fixing drain
• guest coming to dinner
• moviegoer

Question 77

Dif between license and easment

Answer 77

Liscense is revocable where an easement isnt

Question 78

Exception to the rule liscenses are revocable

Answer 78

1. A liscense coupled w. a intrest cannot be revoked(one that is incidental to ownership of chattel O grants right to enter and take timber (like easement by necessity)
2. A license that becomes irrevoable under rules of estoppel

licensee has a chattel on the licensor’s land. The licensor cannot revoke the license in an attempt to prevent the licensee from entering his land to reclaim the chattel.
RST says these licenses are easments

Question 79

Liscense by estoppel(irrevocable) Holbrook

Answer 79

Synopsis of Rule of Law. A license by estoppel can be created by 1.licensor’s consent,
2.along with the licensee’s construction of various structures and repair to the land in question.

Question 80

Where a license is not a bare right of entry, but includes the right to erect structures and acquire an interest in the land in the nature of an easement by the construction of improvements

Answer 80

the licensor may not revoke the license after the licensee has erected improvements at considerable expense. .

Question 81

Creation of easements 1. Easement by Express Grant

Answer 81

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

Question 82

Ceation of easements 2. Easement by Implication

Answer 82

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. Requirements:
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.

Question 83

Creation of easements-Easement by Necessity

Answer 83

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 propert

Question 84

Creation of easements4. Easement by Prescription

Answer 84

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.

Question 85

Creation of easements mneomic. 5. Mnemonic: Easements Incorporate People’s Needs

Answer 85

a. Express Grant b. Implication c. Prescription d. Necessity

Question 86

The scope of an easement by necessity is

Answer 86

strictly confined to the necessity

Question 87

Easements may be enlarged by

Answer 87

prescription

Question 88

Scope of easmentsReasonably foreseeable normal changes in use will be permitted if

Answer 88

the resultant increased burden on the servient tenement is not unreasonable.

Question 89

The servient tenement’s owner may grant an identical easement to a third party if the granted easement is

Answer 89

not inconsistent with the original easement holder’s interest.

Question 90

Prior location, dimension, and special uses determine the scope of

Answer 90

implied and prescriptive easements

Question 91

Except for commercial easements, an easement in gross is generally not.

Answer 91

alienable

Question 92

Transfer of easeements

Answer 92

1. An easement appurtenant automatically passes to the new owner upon conveyance of either the dominant or the servient tenement, unless the parties agree otherwise. 2. If the servient tenement is subdivided or conveyed in whole or in part, the burden of an easement appurtenant remains with those portions of the property, subdivided or conveyed, that are subject to the easement. 3. Except for commercial easements, an easement in gross is generally not alienable.

Question 93

Easements may be terminated by

Answer 93

1. Written release 2. Prescription 3. Abandonment The holder must manifest an intent by conduct (not words alone) to permanently discontinue using the easement. 4. Merger (i.e., common ownership of the servient and dominant tenement). 5. When the purpose for the original creation of the easement no longer exists. 6. When creating document prescribes conditions governing the easement’s duration. 7. Forfeit (i.e., the servient tenement’s burden dramatically increases and cannot be alleviated). 8. When the easement is by necessity and the necessity no longer exists. 9. Estoppel (i.e., the owner of the servient tenement changes his position in reliance on the words or conduct of the easement holder).

Question 94

An owner cannot have an easment in his own land, however, make make use of part of his land to benifet another called a

Answer 94

Quasi easment

Question 95

Hidden easements

Answer 95

Rst implying easements where the prior use was for underground utilities serving either parcel

Question 96

If the dominent and servient tenement come under the same oepwner

Answer 96

Te easment is extinguished and is not revived upon a severence of the former

Question 97

Prior use, as a factor in determining the intent of the parties, includes not only uses that were known at the time of the conveyance, but also…

Answer 97

those that had a possibility of being known at that time and those that a party might reasonably have foreseen the other party expected.

Question 98

In order to find an implied easement, you must look back to the time of the common owner and determine

Answer 98

whether the easement was a necessity and not a mere convenience at the time of the severance of the dominant and servient estate. Othen

Question 99

An implied easement may be shown if (3)

Answer 99

(1) originally there existed common ownership of the dominant and servient estate;
(2) the easement is a necessity not a mere convenience and
(3) the necessity existed at the time of the severance of the two estates. Here, there was a common owner, Hill. However, there was no necessity because the common owner retained the ownership for 3 years of the 16 acres over which he could have accessed the road or could have been able to cross his land to the north to access the road. In addition, it was not shown that necessity existed at the time the dominant and servient estates were severed. There is no easement by prescription. An easement by prescription must be hostile or adverse in character. Here, Plaintiff and others enjoyed the easement with consent or license of the Defendant. Express or implied permission could not ripen into an easement by prescription.

Question 100

Degree of necessity required for an easement by necusity

Answer 100

1. Othen - strict necessity (some cts hold if landlocked is travelable by foot, no easment
2. Others hold if its difficult or costly

Question 101

Can the govt have easement by necessity?

Answer 101

Leo sheep says no bc has the power of eminent domain

Question 102

Next to Xs home is a golf course. Everyday golfers come onto prop to collect balls. Can they get an easement by persriptioj?

Answer 102

If owner puts up a fence with sign, or sues for injunction.. Can then never ripen into easement bu prescription

Question 103

Percriptive easementsThe owner of the servient property must have actual knowledge of its use. Once knowledge of use is established, the key issue becomes

Answer 103

becomes one of permissive use under license as against adverse use under claim of right.

Question 104

Matthews factors in public trust doctine cases(from raliegh)
precisely what privately-owned upland sand area will be available and required to satisfy the public’s rights under the public trust doctrine will depend on the circumstances…

Answer 104

1Location of the dry sand area in relation to the foreshore,
2extent and availability of publicly-owned upland sand area,
3 nature and extent of the public demand, and usage of the upland sand land by the owner are all factors to be weighed and considered in fixing the contours of the usage of the upper sand

Question 105

Scope of easements.. Can another parcel of land use the easement if it doesnt burden?

Answer 105

Discussion. 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.

Question 106

Presecriptive easements scope

Answer 106

If prescriptive easement aquired by pedestrian traffic, cannot be extended to motor cars

Question 107

Prescriptive easements use must be confined to

Answer 107

Conisistent with the general kind of use by which the easment was created and wat a servient owner might reasonably expect to lose by failinf to interupt use
By foot ~= by car

Question 108

Synopsis of Rule of Law. A public recreational trail was not within the scope of an existing easement for railroad purposes. Therefore, the conversion to public recreational trail was

Answer 108

a taking of a new easement for a new purpose, for which the landowners are entitled compensation. In addition, since the easement was abandoned, the opening of the public recreational trails was also a physical taking of the Plaintiffs’ property rights.

Question 109

In order to establish an abandonment there must be in addition to nonuser,

Answer 109

acts by the owner of the dominant tenement conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence

Question 110

An owner doesnt use the easment regularly

Answer 110

Easements are not extinguished by nonuse, need something more

Question 111

Scope of easements often allow an expansion, but do not permit

Answer 111

A change in use not reasonaby forseeble at the time of establishment

Railroad - roadway for transportation of persons by public path. Different nature of usage (business commercial v. Recreation)

Question 112

Correlary to abandonment: nonuse

Answer 112

Some satates say abdadonment if not used for a staatutory period

Question 113

Types of negative easements

Answer 113

1. Light (blocking windows)
2. Air
3. Removing support of your building
4. Interfereing w. artificial water (natural water is du by law)
5. Cnservation easments

Question 114

Cnseravtion easements can be sha easments

Answer 114

Tax deductible if donated, some along golf courses

Question 115

Condiminium features

Answer 115

Each condo is a fee simple absolute. The building is owned as tennants in common

Question 116

An equitable servitude is

Answer 116

promise concerning the use of land that (1) benefits and burdens the original parties to the promise and their successors and (2) is enforceable by injunction

Question 117

In order for the burden of an equitable servitude to bind the original promissor’s successors, four elements must be met

Answer 117

(1) the promise must be in a writing that satisfies the Statute of Frauds or implied from a common plan;
(2) the original parties must intend to burden successors;
(3) the promise must “touch and concern” land; and
(4) the successor must have notice of the promise.

Question 118

Equitable servitude:Only three elements are required for the benefit to run to successors:

Answer 118

(1) the promise must be in writing or implied from a common plan; (2) the original parties must intend to benefit successors; and
(3) the promise must “touch and concern” land.

Question 119

If a developer manifests a common plan or common scheme to impose uniform restrictions on a subdivision

Answer 119

most courts conclude that an equitable servitude will be implied in equity, even though the Statute of Frauds is not satisfied. The common plan is seen as an implied promise by the developer to impose the same restrictions on all of his retained lots.

Question 120

racially- restrictive covenants were

Answer 120

unconstitutional and hence unenforceable

Question 121

Doctrine of changed conditions

Answer 121

when there has been such a major change in neighborhood conditions that enforcement of the restriction would not provide substantial benefit to the dominant land, it is unenforceable under the doctrine of changed conditions.

Question 122

The standard remedy for breach of an equitable servitude is:

When the breach at issue is the failure to pay money, courts will usually impose a:

Answer 122

Injunction

a lien on the affected property, which the plaintiff may collect by foreclosing.

Question 123

common interest community or CIC,

Answer 123

where their properties are subject to comprehensive land use restrictions administered by private associations. Yet the benefits of such communal living are possible only by the surrender of individual freedom

Question 124

In a condominium, each owner

Answer 124

(1) holds fee simple title to an individual unit (usually a cube of airspace); and (
2) also owns an undivided interest in the common areas of the development (e.g., the building, recreational facilities, parking lot) as a tenant in common.

Question 125

CIC covenants are presumed to be valid.

Answer 125

Yet a growing minority of courts will invalidate such a covenant if it is arbitrary, violates a fundamental constitutional right, or violates public policy. See, e.g., Nahrstedt v. Lakeside Village Condominium Association, 878 P.2d 1275 (Cal. 1994).

Question 126

Covenents enforceable at law

Answer 126

Real covanents

Question 127

The question of wheter a covenent runs only arises when

Answer 127

A person who was not party to the contract is suing or being sued

Question 128

Horizontal privity

Answer 128

Privity of estate between the original coventing parties (not to use land for indust purposes)

Question 129

Vertical privity

Answer 129

Privity of estate between one of the covenanting parties and a successor in interest

Question 130

Privity between promisee and promisor

Answer 130

Horitzonatl privity between orig. parties

Question 131

Privity between promisee and asignee; or promisor and his assignee

Answer 131

Vertical privity

Question 132

Rst takes positiion that _______ for the burden to run at law

Answer 132

Horizontal privity is not required for the burden to run at law

Question 133

Does an assignee need notice of a covent for it to be enforceable?

Answer 133

Yes