Easements Flashcards
What is an Easement?
-legal interest restricting the use and enjoyment of an owner’s land. Rights to do specific acts on land owned by someone else. Generally runs w/ the land. Generally must be in writing and NOT revocable at will of owner. Can have implied easements.
- Affirmative: legal right to go on or through an owner’s land
- Negative: legal right to restrict owner’s use and enjoyment of owner’s land.
Common Law Doctrine of Succession: Appurtenant
- Benefit runs w/ dominant tenament and burden runs w/ servient tenamant so long as later owner has notice(actual,real,constructive).
- Servitude will continue to exist even if the parcels burdened and benefited by the easement are sold(intent).
What is a Conservation Easement?
Negative Easement: Restricts owners and future owners for environmental conservation purposed.
What are the two natures of Easements?
a. Appurtenant: (dominant tenement benefited and servient tenement burdened) Ex. Road
b. In gross: No dominant tenement benefited but there is a servient tenement burdened. EX. Utilities across land
Common Law Doctrine of Succession: In Gross
Benefit generally assignable for business purposes. If personal, generally not assignable. Burden runs with servient tenement so long as later owner has actual, record, or inquiry notice
Ex. If a create an easement to hunt on your land and you are servient estate if you sell your land i can still hunt on your land but if I sell my land the next owner can not use that benefit.
Ex. Utility co. sales land then benefit runs w/ land. You should hope there are power lines.
Creation of Easements in General:
Can be express, implied, and by prescription
Express Creation
i. Independent direct grant by deed. (unique to easements)
ii. Direct grant in fee deed to dominant tract. Easement in addition to land.
iii. Grantor reservation or exception in fee deed to servient tract.
* Reservation=Carve out something. O→A with reservation that O still uses dock. *Exception= don’t sell entire fee simple, you keep a stick. Lakehouse ex.→ you don’t sell them the dock but still must use their land to get to your dock.
- Modern trend→ for 3rd party reservation you only need one deed. In most states however, you need two deeds.
What is a reservation or exception?
- Reservation=Carve out something. O→A with reservation that O still uses dock. *Exception= don’t sell entire fee simple, you keep a stick. Lakehouse ex.→ you don’t sell them the dock but still must use their land to get to your dock.
- Modern trend→ for 3rd party reservation you only need one deed. In most states however, you need two deeds. Trend is to follow intent.
Langauge in Deed in Creation of Easements
i. Should include Location, size, nature, scope, restrictions, limitations, manner of use, duration, termination, succession
ii. If any of these missing, common law applies
1. Owner of servient tract may choose reasonably convenient (for both parties) location
2. Reasonably convenient for present and future needs in view of intended purpose
3. Will not allow unreasonable increase in burden or change in nature of burden
4. Doctrine of Succession: easement appurtenant runs with the dominant tract of land and every part thereof
- Subject to statute of frauds.
What are Implied Easements?
i. Affirmative easement may be implied where there was unity of title, deed severance based on implied intent of deed. Must have all 3.
Unity of Title- acquires in same deed at same time
Deed Severance based on implied- Easement is implied in deed
Limits on implied Easements.
- notes:Implication may be rebutted by express language in deed under either doctrine
- There is no absolute right of access across a neighbor’s land. You want/youpay
- There is no absolute right to service easements. You/want
Limits on Implied Easements
- There is no absolute right of access across a neighbor’s land. You want/youpay
- There is no absolute right to service easements. You/want
Exception of Implied Easement: Doctrine of Absolute/Strict necessity
Right of way access to public road may be implied if grantee’s land would be useless without (no reasonable alternative access). Ex. If you cant get to your house w/o easement
Exception of Implied Easement: Doctrine of Reasonable Necessity
- Right of way access to public road or other affirmative (quasi) easement may be implied to benefit grantee’s land if at time of deed, the quasi easement was apparent, preexisting, continuous use, and reasonably necessary or convenient for grantee’s use of the land
EX.When owner of large tract of land or two adjoining parcels sells one and keeps the other, the owner of one of the parcels may claim an easement in the other w/o express if the two parcels were at one time in common ownership and there was common use and if it was reasonable necessary.
- More likely to apply to grantee
- access to lake probably not necessary
How can an easement be created by Prescription?
i. Open and notorious adverse use continuing for statutory period. Like adverse possession but no claim of title. Can only apply to affirmative easements
ii. Run w/ the land and are binding on the subsequent owners of the servient estate.
Courts split on color of title and tax payments.
Limits for Prescriptions
i. Need not exclude owner but Must be exclusive from public
ii. Private can’t use against gov.
iii. Use must be substantially different from owner’s use.
iv. Normally public cannot get prescriptive easement but might through “implied dedication” if they have used it forever?
