Easements, Covenants; Servitudes

Question 1

Creation of easements

Answer 1

1. Express grant
2. Express reservation
3. Implication
4. Prescription

Question 2

Easement

Answer 2

Nonpossessory interest in land creating a right to use land possessed by someone else.

Easement holder has the right to use another’s tract of land for a special purpose.

Presumed to b of perpetual duration unless grant specifically limits interest

Question 3

Easement appurtenant

Answer 3

Benefits the holder in his physical use or enjoyment of another tract of land.

Must be two tracts: dominant tenement (estate benefitted) servient tenement (estate subject easement)

Passes with transfer of the benefitted land regardless of whether it’s mentioned in conveyance.

Burden of easement also passes automatically with the servient estate unless the new owner is a BFP with no actual or constructive notice of easement.

Question 4

Easement in gross

Answer 4

Holder acquires right to use servient tenement independent of his possession of another tract of land. Benefits the holder not the parcel.

Easement for holders pleasure not transferable.

Easement serving economic interest transferable

Question 5

Express Grant

Answer 5

Must be memorialized in writing signed by the holder of servient tenement unless for under a year to satisfy SOF.

Question 6

Express reservation

Answer 6

Arises when grantor conveys title to land but reserves the right to continue to use tract for a special purpose.

Question 7

Implication (easement implied from existing use)

Answer 7

Created by operation of Law. Exception to SOF.

1. Prior to the division of a single tract
2. And apparently and continuous use exists on the servient land
3. That is reasonably necessary for the enjoyment of the dominant land
4. Court determines that parties intended the use to continue after division of land

Question 8

Implication (easement implied without existing use)

Answer 8

Subdivision plat: buyers of lots have implied easements to use streets to access their lots

Profit a prendre: implies easement to pass over land and use it as reasonably necessary to extract product.

Question 9

Easement by necessity

Answer 9

Arises when a landowner sells a portion of his tract and by this division deprives one lot of access to a public road or utility line.

Owner of servient parcel reserves right to locate the easement.

Question 10

Prescription

Answer 10

To acquire prescriptive easement, use must be:

1. Open and notorious (discoverable upon inspection)
2. Adverse (without owners permission)
3. Continuous & uninterrupted
4. For statutory period

Question 11

Scope of easement

Answer 11

In absence of specific limitations I grant, courts assume easement was intended to meet both present and future needs of dominant tenement. (Easement May widen to accommodate new wider cars)

BUT

May not be overused or misused

Overuse and misuse does not terminate easement. Appropriate remedy for servient owner injunction against misuse.