Easements Flashcards
Servient and dominant estates
The servient estate is the land burdened by the easement.
The dominant estate is the land benefited by the easement.
Easements appurtement and in gross
An easement appurtement is tied to the use of land.
An easement in gross personally benefits the holder.
Express easements
Express easements can be created by grant or by reservation.
They must be:
(1) writing to satisfy the statute of frauds; but
(2) there need not be consideration in the creation of an express easement.
Express easements are subject to recording acts.
Negative easements can only be created expressly, as negative rights rarely will be created by the circumstances.
Express easements: scope
Courts examine intent in interpreting ambiguous terms.
Changes in use are subject to reasonableness—i.e., whether the parties contemplated the change.
Terminating an easement
An easement can be terminated by:
(1) Release, if in writing;
(2) Merger;
(3) Abandonment:
(4) Prescription;
(5) Sale to a bona fide purchaser, if an express easement is granted but not recorded;
(6) Estoppel; or
(7) End of necessity, if the easement is by necessity.
Terminating an easement: abandonment
An easement is terminated by abandonment through:
(1) Non use; and
(2) An affirmative act demonstrating intent to abandon.
An easement can only be terminated based on a theory of abandonment if the owner of the easement acts in an affirmative way that clearly shows intent to relinquish the easement right.
Trespass
If use exceeds the scope of an easement, the dominant tenant is trespassing on the servient estate.
Terminating an easement: merger
An easement is terminated if the owner of an easement acquires fee title to the underlying estate.
Transfer: easements appurtement
An easement appurtenant is transferred with the land to which it relates:
(1) the benefit is transferred automatically with the transfer of the dominant estate; and
(2) the burden likewise is transferred automatically with the transfer of the servient estate.
Transfer: easements in gross
Traditionally, an easement in gross could not be transferred, but most courts now allow transfer if it is for commercial use or if the parties intended it to be transferable.
Like easements appurtenant, however, the burden of an easement in gross is transferred automatically with the transfer of the servient estate.
Negative easements
A negative easement, which prevents the owner of the servient estate from taking an action, is typically only recognized with respect to restricting use of light, air, support, or stream water from an artificial flow.
