Easements and Covenants

Question 1

What is a servitude?

Answer 1

Private agreement which deals with the use of, or restrictions on the use of, land. A non-possessory right to use land.

Question 2

What are the four types of servitudes?

Answer 2

1. easements
2. profits
3. licenses
4. covenants

Question 3

What is a profit?

Answer 3

The right to take. A profit is an easement that allows you to go on someone else’s property and take stuff, specifically natural resources (e.g., coal, oil, gas, gravel, sand, timber, fish, wild game, minerals)

Question 4

What is the burdened/servient estate?

Answer 4

Allows the use, restriction, or affirmative obligations

Question 5

What is the benefited/dominant estate?

Answer 5

Right to enforce the use, restriction, or obligationwith regard to the burdened property

Question 6

What are the classifications of easements?

Answer 6

1. affirmative or negative
2. appurtenant or in gross
3. by how they are created

Question 7

What is an affirmative easement?

Answer 7

The benefited property has the right to use the burdened property

Question 8

What is a negative easement?

Answer 8

The benefited property has the right to enforce a restriction on the use of the burdened property

Question 9

What is not a way that negative easements can be acquired?

Answer 9

By prescription

Question 10

What is an appurtenant easement?

Answer 10

Involves a burdened property and a benefited property, generally runs with the land, can be negative or affirmative

Question 11

Do courts favor appurtenant or in gross?

Answer 11

Appurtenant

Question 12

Is an appurtenant easement assignable?

Answer 12

Yes, generally it is assignable automatically if intended by the parties and the burdened party has notice of the easement.

Question 13

What is an easement in gross?

Answer 13

Involves only the burdened property, instead of having a benefited property you have a benefited person or entity, can be negative or affirmative

Question 14

Is an easement in gross assignable?

Answer 14

Generally, yes, EXCEPT recreational easements in gross BUT ALSO not permited to overburden in relation to original intent of the parties

Question 15

Are easements in gross divisible?

Answer 15

No, meaning if two or more people own an easement in gross, they cannot divide it into more than one stock and must be with the unaninmous consent of the parties.

Question 16

What are the four ways an easement is created?

Answer 16

1. express
2. implied by apparent existing use
3. implied by strict necessity
4. by prescription

Question 17

When is an easement express?

Answer 17

written

Question 18

What are the 4 elements of an easement implied by apparent existing use?

Answer 18

1. one part of the land is serving another part
2. such service exists and is apparent when the common owner divides the property
3. the parties reasonably expect the service to continue
4. the service is reasonably necessary (although perhaps not strictly necessary)

Question 19

If the necessity goes away in apparent existing use, does the easement go away?

Answer 19

Depends on jurisdiction. Some say yes, some say no.

Question 20

What are the 3 elements to easement implied by strict necessity?

Answer 20

1. common ownership of property that is divided
2. necessity existed at the time of the severance
3. the necessity is substantial, absolutely necessary

Question 21

What happens to a strict necessity easement if the necessity goes away?

Answer 21

If the easement becomes unnecessary at some point because the claimant obtains some other access, the easement dissolves and is gone. If the other access is lost, the easement does not reappear but must be reacquired by purchase.

Question 22

What are the 3 elements of prescriptive easement?

Answer 22

1. open and notorious
2. adverse and under a claim of right
3. continuous for the statutory period

Question 23

What rights are obtained in a prescriptive easement?

Answer 23

Only the rights stolen are those to use the property as it was during the prescriptive period.

Question 24

What are public prescriptive rights?

Answer 24

When the public acquires a prescriptive easement

Question 25

What is the public trust doctrine?

Answer 25

The public trust doctrine says the state holds navigable water ways in trust for the public. So, if it is the ocean or a navigable river/lake, then you as a member of the public, are entitled to be in that water, but not entitled to privately owned land on the water. The public trust doctrine will typically cover up to the wet sand.

Question 26

What is the merger doctrine?

Answer 26

The doctrine of merger states that if the benefited and burdened estates come under the ownership of a single person or entity, the easement is extinguished.

Question 27

What is a reservation?

Answer 27

A reservation is made where the easement never existed before and is being newly created in this transaction.

Question 28

What is an exception?

Answer 28

An exception is made where the easement had been previously created and the present conveyance is specifying that the grantor is not including such interest in the grant and that the present conveyance is being made subject to the easement.

Question 29

What is the minority rule for reservations in third party?

Answer 29

That an easement can be reserved in favor of a third party.

Question 30

What is the majority rule for reseravations in a third party?

Answer 30

You cannot reserve an easement in a third party. Alternative would be sell the property to the third party first and then let the third party create an easement.

Question 31

What is the scope of an easement?

Answer 31

How far you can stretch the easement

Question 32

How is the scope of an easement determined?

Answer 32

Look at the language of the easement document; if language is ambiguous, then look to surrounding circumstances

Question 33

What are examples of issues with scope of an easement?

Answer 33

Area of dominant parcel; division of dominant parcel so as to increase the number of users; nature and extent of use rights included

Question 34

What is the majority rule for extending private road easements? Minority?

Answer 34

A private road easement to traverse the servient estate to reach the dominant estate cannot be used to reach an additional, subsequently acquired parcel by the dominant owner. You sure as shit can.

Question 35

Can location of an easement be modified?

Answer 35

Location can only be modified when the benefited and burdened estates agree to modify it.

Question 36

Can the use of an easement be changed?

Answer 36

The owner of the dominant estate can modify the servient estate's use of the easement to accomodate normal development of the property.

Question 37

Does an easement allow utilities?

Answer 37

Usually, a private easement will not allow you to install above or under ground utilities.

Question 37

What is the scope of a prescriptive easement?

Answer 37

Generally, you are not able to modify prescriptive easements. The use must be consistent with the general kind of use by which the easement was created and must consider what the servient landowner might expect to lose by failing interrupt the prescription.

Question 38

What is a license?

Answer 38

A license is an oral or written permission given by an occupant of land allowing the licensee to do some act that owuld otherwise be a trespass.

Question 39

When is a license irrevocable?

Answer 39

When it its coupled with an interest or estoppel