Easements

Question 1

An interest in real property
No right of possession
Limited right to use the land for a specific purpose
“Runs with the land” and binding upon subsequent owners

Answer 1

Easement

Question 2

Not an interest in real property
A privilege to use the land of another for a specific purpose
Personal to the grantee; cannot be transferred or assigned
Can be revoked by the grantor at any time

Answer 2

License

Question 3

An interest in real property

Tenant has the exclusive right of possession of the land

Answer 3

Lease

Question 4

a nonpossessory right to use the land of another party

Estate, tenement, land, parcel, and property all mean the same thing

Answer 4

Definition of easement

Question 5

the land that is benefited by the easement

Answer 5

Dominant estate

Question 6

the easement holder / the owner of the land that is benefited by the easement

Answer 6

Dominant owner:

Question 7

the land that is burdened by the easement

Answer 7

Servient estate

Question 8

owner of the land that is burdened by the easement

Answer 8

Servient owner

Question 9

Easement created with the agreement of the owner whose land is burdened

Answer 9

Express easement

Question 10

Other than an ________ ________, all easement types are imposed as a matter of law without the need for the agreement of the owner whose land is burdened

Answer 10

express easement

Question 11

Types of Easements

Answer 11

Implied easement by prior existing use
Easement by necessity
Prescriptive easement
Easement by estoppel
Express easement

Question 12

A nonpossessory right to use land in the possession of another

Answer 12

Easement

Question 13

(1) Nonpossessory – Easement holder has not right to possession of the land. This is different from freehold and nonfreehold estate. Right to use land for a limited purpose.
(2) Interest in land – It is not simply a contract right; It must satisfy the Statute of Frauds.
(3) Burdens land of another – A person cannot hold an easement in his own land

NIB

Answer 13

Easement Elements

Question 14

By an express grant - a written agreement between the servient owner and the dominant owner, or
By an express reservation – typically, an easement reserved by the grantor when he conveys a portion of his property a third party but retains an easement over that property
Must satisfy the Statute of Frauds

Answer 14

Creation of Easement

Express easement

Question 15

By prior existing use
By necessity
By prescription 
By estoppel
These 4 types of easements arise as a matter of law, without any express agreement to create an easement

Answer 15

Creation of Easement

Easements created by implication

Question 16

Benefits the easement holder in his use of a specific property (the dominant estate)

Involves 2 parcels of property, a servient estate (the burdened parcel) and a dominant estate (the benefited parcel)
The easement may only be used for the benefit of the dominant estate
Automatically transfers upon a conveyance of the dominant or servient estate
Viewed as attached to the land

Involves two parcels of land, usually adjacent

Answer 16

Easement Appurtenant

Question 17

if an easement is granted in connection with a conveyance of land to the easement holder, the easement will be construed as appurtenant unless there is clear evidence that the grantor intended to create an _________ __ _____

Answer 17

easement in gross

Question 18

Unless the parties otherwise agree, an __________ _______ is automatically transferred with the ownership of the dominant (benefited) estate and servient (burdened) estate

Answer 18

appurtenant easement

Question 19

Under the ________ approach, an easement in gross is non-transferable unless it is of a commercial nature

Answer 19

traditional

Question 20

The transferability of an easement in gross should depend on the parties’ intentions and not on the characterization of whether it is appurtenant or in gross

Answer 20

Modern trend: Restatement §4.6(1)(c)

Question 21

Grants the easement holder the right to perform some act on the servient estate

Answer 21

Affirmative Easement

Question 22

Grants the easement holder the right to prevent the servient owner from performing some act on the servient land

Answer 22

Negative Easement

Question 23

Right of a third party to enter the land to remove minerals, oil & gas, timber, other natural resources

Answer 23

Profit

Question 24

If the agreement created a valid express easement, then it was an _________ which continued to burden the land

Answer 24

easement

Question 25

If the agreement did not create a _____ ______ easement, then it was a license agreement which could be revoked

Answer 25

valid express

Question 26

If the owner has the right to exclude the user or ______ __ ______, it is usually a license

Answer 26

revoke the right

Question 27

If it is for a ________ period, it is more likely to be an easement (because a license is generally revocable at any time)

Answer 27

definite

Question 28

Courts look at the _________ of the document, not what the parties call it, to determine if it is an easement or a license

Answer 28

substance

Question 29

If the owner has the ______ __ _______, it is most likely a license

Answer 29

right to revoke

Question 30

If it includes a provision stating it is _______ ____ _______ owners, it is most likely an easement

Answer 30

binding upon future

Question 31

The ______ of the document does not control

Answer 31

title

Question 32

Easement by necessity lasts only as long as the ________ continues

Answer 32

“necessity”

Question 33

To establish an __________ __ ________ based on necessity, the following elements must be met:

Common grantor conveys/severs a portion of his land
There is a strict necessity for the easement at the time of the severance

Answer 33

easement by implication

Question 34

Easement by implication based on prior existing use requires

Answer 34

Grantor conveys a portion of his property to a 3rd party (severance of title)
An existing, apparent and continuous use of the servient land for the benefit of the dominant land before the conveyance
Some level of necessity of the continued use after the conveyance

Question 35

Easement by implication based on necessity requires

Answer 35

Grantor conveys a portion of his property to a 3rd party (severance of title)

Some level of necessity of use exists after the conveyance

Question 36

Majority/ Traditional view
Strict necessity is required
Example: the owner of the dominant parcel has no legal right of access to his property

Minority / Modern (and Restatement) view
Reasonable necessity is required
The easement must be beneficial or convenient for the use of the dominant parcel

Berge view (also a minority view)
Dominant owner must lack reasonably practical access
Middle ground between the majority view and the minority/Restatement view

Answer 36

Three views of the level of necessity needed for an easement by implication based on necessity

Question 37

A lack of “reasonably practical access” for the “reasonable enjoyment of his land” is required to find an _________ __ ___________

Answer 37

easement by necessity

Question 38

the owner of the servient parcel has the right to select the location/route of the easement by necessity
If the location chosen by the servient owner imposes a significant financial burden on the dominant owner, the court will defer to the location chosen by the dominant owner

Answer 38

Location E by N

Question 39

Open and notorious
Continuous

Adverse and hostile
All jurisdictions agree that a claimant who uses land with the permission of the owner cannot claim a prescriptive easement because his conduct is not adverse and hostile

For the statutory period
The statutory period is typically the same for adverse possession and for prescriptive easements
-The period for prescription is usually the same as the state’s adverse possession statute
-Use must be continuous, open and notorious
-Claimant does not have to exercise exclusive use of the land
-Use must be adverse

Answer 39

Prescriptive Easement

Question 40

Traditional view: the public at large cannot acquire an easement by prescription
This is still the rule in many jurisdictions
But some jurisdictions recognize the right of the public at large to acquire a prescriptive easement

Answer 40

Prescriptive use by the Public