Easements and Covenants Flashcards
What is a servitude?
Private agreement which deals with the use of, or restrictions on the use of, land. A non-possessory right to use land.
What are the four types of servitudes?
- easements
- profits
- licenses
- covenants
What is a profit?
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)
What is the burdened/servient estate?
Allows the use, restriction, or affirmative obligations
What is the benefited/dominant estate?
Right to enforce the use, restriction, or obligationwith regard to the burdened property
What are the classifications of easements?
- affirmative or negative
- appurtenant or in gross
- by how they are created
What is an affirmative easement?
The benefited property has the right to use the burdened property
What is a negative easement?
The benefited property has the right to enforce a restriction on the use of the burdened property
What is not a way that negative easements can be acquired?
By prescription
What is an appurtenant easement?
Involves a burdened property and a benefited property, generally runs with the land, can be negative or affirmative
Do courts favor appurtenant or in gross?
Appurtenant
Is an appurtenant easement assignable?
Yes, generally it is assignable automatically if intended by the parties and the burdened party has notice of the easement.
What is an easement in gross?
Involves only the burdened property, instead of having a benefited property you have a benefited person or entity, can be negative or affirmative
Is an easement in gross assignable?
Generally, yes, EXCEPT recreational easements in gross BUT ALSO not permited to overburden in relation to original intent of the parties
Are easements in gross divisible?
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.
What are the four ways an easement is created?
- express
- implied by apparent existing use
- implied by strict necessity
- by prescription
When is an easement express?
written
What are the 4 elements of an easement implied by apparent existing use?
- one part of the land is serving another part
- such service exists and is apparent when the common owner divides the property
- the parties reasonably expect the service to continue
- the service is reasonably necessary (although perhaps not strictly necessary)
If the necessity goes away in apparent existing use, does the easement go away?
Depends on jurisdiction. Some say yes, some say no.
What are the 3 elements to easement implied by strict necessity?
- common ownership of property that is divided
- necessity existed at the time of the severance
- the necessity is substantial, absolutely necessary
What happens to a strict necessity easement if the necessity goes away?
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.
What are the 3 elements of prescriptive easement?
- open and notorious
- adverse and under a claim of right
- continuous for the statutory period
What rights are obtained in a prescriptive easement?
Only the rights stolen are those to use the property as it was during the prescriptive period.
What are public prescriptive rights?
When the public acquires a prescriptive easement
What is the public trust doctrine?
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.
What is the merger doctrine?
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.
What is a reservation?
A reservation is made where the easement never existed before and is being newly created in this transaction.
What is an exception?
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.
What is the minority rule for reservations in third party?
That an easement can be reserved in favor of a third party.
What is the majority rule for reseravations in a third party?
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.
What is the scope of an easement?
How far you can stretch the easement
How is the scope of an easement determined?
Look at the language of the easement document; if language is ambiguous, then look to surrounding circumstances
What are examples of issues with scope of an easement?
Area of dominant parcel; division of dominant parcel so as to increase the number of users; nature and extent of use rights included
What is the majority rule for extending private road easements? Minority?
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.
Can location of an easement be modified?
Location can only be modified when the benefited and burdened estates agree to modify it.
Can the use of an easement be changed?
The owner of the dominant estate can modify the servient estate’s use of the easement to accomodate normal development of the property.
Does an easement allow utilities?
Usually, a private easement will not allow you to install above or under ground utilities.
What is the scope of a prescriptive easement?
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.
What is a license?
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.
When is a license irrevocable?
When it its coupled with an interest or estoppel
