Easements Flashcards
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
Easement
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
License
An interest in real property
Tenant has the exclusive right of possession of the land
Lease
a nonpossessory right to use the land of another party
Estate, tenement, land, parcel, and property all mean the same thing
Definition of easement
the land that is benefited by the easement
Dominant estate
the easement holder / the owner of the land that is benefited by the easement
Dominant owner:
the land that is burdened by the easement
Servient estate
owner of the land that is burdened by the easement
Servient owner
Easement created with the agreement of the owner whose land is burdened
Express easement
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
express easement
Types of Easements
Implied easement by prior existing use Easement by necessity Prescriptive easement Easement by estoppel Express easement
A nonpossessory right to use land in the possession of another
Easement
(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
Easement Elements
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
Creation of Easement
Express easement
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
Creation of Easement
Easements created by implication
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
Easement Appurtenant
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 _________ __ _____
easement in gross
Unless the parties otherwise agree, an __________ _______ is automatically transferred with the ownership of the dominant (benefited) estate and servient (burdened) estate
appurtenant easement
Under the ________ approach, an easement in gross is non-transferable unless it is of a commercial nature
traditional
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
Modern trend: Restatement §4.6(1)(c)
Grants the easement holder the right to perform some act on the servient estate
Affirmative Easement
Grants the easement holder the right to prevent the servient owner from performing some act on the servient land
Negative Easement
Right of a third party to enter the land to remove minerals, oil & gas, timber, other natural resources
Profit
If the agreement created a valid express easement, then it was an _________ which continued to burden the land
easement
If the agreement did not create a _____ ______ easement, then it was a license agreement which could be revoked
valid express
If the owner has the right to exclude the user or ______ __ ______, it is usually a license
revoke the right
If it is for a ________ period, it is more likely to be an easement (because a license is generally revocable at any time)
definite
Courts look at the _________ of the document, not what the parties call it, to determine if it is an easement or a license
substance
If the owner has the ______ __ _______, it is most likely a license
right to revoke
If it includes a provision stating it is _______ ____ _______ owners, it is most likely an easement
binding upon future
The ______ of the document does not control
title
Easement by necessity lasts only as long as the ________ continues
“necessity”
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
easement by implication
Easement by implication based on prior existing use requires
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
Easement by implication based on necessity requires
Grantor conveys a portion of his property to a 3rd party (severance of title)
Some level of necessity of use exists after the conveyance
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
Three views of the level of necessity needed for an easement by implication based on necessity
A lack of “reasonably practical access” for the “reasonable enjoyment of his land” is required to find an _________ __ ___________
easement by necessity
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
Location E by N
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
Prescriptive Easement
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
Prescriptive use by the Public
