Easements

Question 1

What is an easement?

Answer 1

non-possessory interest involving the right to use land

Can be affirmative easement (allows someone to do something on land) or negative easement (prevents another from blocking something on land)

Question 2

What is the land where easement is on called?

Answer 2

Dominant estate: benefits from the easement

Servient estate: land with the easement

Question 3

What are the two types of easements?

Answer 3

Easement appurtenant: easement directly benefits the use of a specific piece of land (e.g. easement to drive over to reach road)

Easement in gross: easement does not benefit an adjoining landowner (e.g. right to swim or power lines)

Question 4

How are express easements created?

Answer 4

Express grant (need SOF if >1 year) or

Express reservation (grantor grants land but reserves right to continue to use tract for a special purpose

Question 5

What are the 3 types of implied easements?

Answer 5

• implied easement by prior use
• implied easement by necessity
• implied easement by prescription

Question 6

What is an implied easement by prior use?

Answer 6

(a) commonly owned land severed
(b) prior common owner used the land
(c) in an apparent and continuous manner; and
(d) its use is reasonably necessary (TX: reasonably necessary if impliedly granted) for the continued enjoyment of the now dominant estate (TX: if impliedly reserved, must be strictly necessary)

Question 7

What is an easement by prescription?

Answer 7

like adverse possession, but applies to use and not possession

Use of the land that is:

(a) visible and notorious;
(b) adverse; and
(c) continuous (seasonal use ok)

MBE time period: 20 years

TX time period: 10 years

Question 8

What is an implied easement by necessity?

Answer 8

Common ownership of land that was severed which now makes some of the land landlocked (new owner needs access to an exit/road)

Owner of servient estate can choose location of easement as long as the location is reasonable.

Question 9

When do the benefits of easements transfer?

Answer 9

Easement appurtenant: transfer automatically regardless of whether mentioned or not in the conveyance and cannot be separated

Easement in gross: if commercial (e.g. power lines), may be transferred. If personal (e.g. swimming rights), cannot be transferred.

Question 10

When do the burdens of easements transfer?

Answer 10

Easement always binding on subsequent holders of servient estates (even if not in deed) unless subsequent holder did not have notice.

Question 11

What is the scope of express easements?

Answer 11

express terms of the easement

Question 12

What is the scope of easements that are not in writing?

Answer 12

use or necessity that established the easement

Question 13

What is the scope of easements if the easement is silent?

Answer 13

use for the reasonable development of the dominant estate

Question 14

What happens if there is an overuse or misuse of an easement?

Answer 14

The easement is NOT terminated.

Remedy is for servient estate owner to get an injunction

Question 15

Who may repair an easement?

Answer 15

Holder of easement is obligated to make repairs. Servient estate owner has no duty (unless easement says otherwise)

Holder of easement has right to go onto servient estate to repair and must make reasonable restoration of servient estate after repairs.

Question 16

When are easements terminated?

Answer 16

In addition to setting a time period:

• Unity of Ownership or Merger
• Release
• Abandonment
• Termination by Estoppel
• Termination by Prescription
• End of Necessity

Question 17

Termination of easement by unity of ownership or merger

Answer 17

Dominant and servient estate come together in same owner (it is dead and can never be revived)

Question 18

Termination of easement by release

Answer 18

valid release that complies with SOF and all deed formalities

Question 19

Termination of easement by abandonment

Answer 19

Intend to abandon by taking some physical act (e.g. building a structure that blocks access)

Must be more than a mere wish or non-use

Question 20

Termination of easement by Termination by Estoppel

Answer 20

(a) dominant estate holder indicates they are relinquishing easement; and
(b) holder of servient estate changes position in reliance

Question 21

Termination of easement by Termination by Prescription

Answer 21

Owner of servient estate stops the use of the easement for the statutory period (usually 20 years)

Question 22

Termination of easement by End of Necessity

Answer 22

once necessity that created easement ceases to exist, then easement dies.

Question 23

What is the difference between an easement and a license?

Answer 23

license is a revocable privilege to go onto another’s land

easement: property interest
license: contract

Question 24

When are licenses most often created?

Answer 24

• tickets: can be revoked but contract damages may be imposed
• irrevocable licenses: license plus money spent on furthering the license

Question 25

What happens if an easement is attempted but fails due to statute of frauds (and does not meet any of the easement tests)?

Answer 25

Easement by estoppel: there is a license created

Question 26

What is the right to profit off land?

Answer 26

Holder can go onto the land and take natural resources

Implied easement to go on the land to get the resource and take it away

Question 27

Difference between negative easement and restrictive covenant

Answer 27

Negative easement: right to prevents something elemental on land from being blocked (e.g. wind, water, sunlight, air, support from ground, view)

Restrictive covenant: right to prevent someone from doing something on a piece of land