Easements and Covenants

Question 1

Easements

Answer 1

Nonpossessory interest in the use or restriction of use of the land of another. Easements can be affirmative or negative. Easements may be created in writing or orally.

Question 2

Easement creation

Answer 2

Express: an easement between two parties in writing. Express easements terminate when the parties agree.

Necessity: Florida recognizes a statutory easement of necessity. An easement by necessity exists when no other reasonable way of entrance or exit exists and the easement is reasonably necessary for the beneficial use or enjoyment of the property. Easements by necessity are not in writing. These easements terminate when the necessity ends.

Prescription: An easement can arise through prescription if the easement holder has used the easement for 20 years, the use was open and notorious, the use was adverse (i.e., without owner’s permission), and the use was continuous.

Implication: This easement is created by implication of law (and is an exception to the SOF).
Generally, there are two types of easements by implication:
1. easement implied from existing use (i.e., easement by estoppel);
and 2. easement by necessity.

Question 3

Affirmative easement

Answer 3

Allows the holder to enter onto the servient tenement and make affirmative use of it.

Question 4

Negative easement

Answer 4

Prevents the owner of the servient tenement from engaging in specified activity on the servient tenement

Question 5

How long do easements last

Answer 5

Generally, easements are enforceable/run with the land forever unless it is terminated.

Question 6

How do easements terminate?

Answer 6

1. Express agreement
2. Abandonment: (1) nonuse and (2) express intent not to return. Nonuse alone is not sufficient to terminate an easement.
3. Merger: when the easement holder becomes the owner of the property subject to the easement
4. When the necessity ends.

Question 7

Easement Appurtenant

Answer 7

Burdens a piece of land, knowns as the servant estate, for the benefit of the holder in use/enjoyment of his own land, known as the dominant estate. Easement appurtenants are binding on all of the owner’s subsequent transferees regardless of whether the conveyance refers to the easement, as long as the transferees have notice of it.

Question 8

Easement in gross

Answer 8

The holder has a personal/commercial advantage unrelated to use/enjoyment of land. The easement benefits an individual or entity rather than the owner of a specific piece of land.
Easements in gross do not transfer unless they are for a commercial purpose.

Question 9

Surcharge

Answer 9

When the owner of an easement uses it in a way that exceeds the legal scope, it is surcharged. The remedy of the sentient landowner is an injunction of the excess use and possibly damages if the servant land has been harmed. However, the excess use does not terminate the easement or give the servant landowner a power of termination.