Easements, Covenants, Servitudes, Profits Flashcards
What is an easement?
An easement is a non-possessory interest in land involving a privilege or an advantage which one holds in the land of another. The easement holder has a right to use the land burdened by the easement for a special purpose or the right to restrict the owner or possessor of the land. The easement holder has no general right to full possession or enjoyment of the land.
What is the servient tenement?
In an easement appurtenant, the servient tenement is the land subject to the easement.
What is a dominant tenement?
In an easement appurtenant, the dominant tenement is the land that has the benefit of the easement.
What is a an easement appurtenant?
It is an easement that confers a benefit on a tract of land (like a pathway through land). It involves, must involve, two tracts of land. No conveyance of easement right apart from the possession of the dominant tenement.
What is an easement in gross?
This is a right to use the servient tenement. Utility companies good example. No dominant tenement by definition because this type of easement is attached to the user, not the land.
What is an affirmative easement?
Entitles the easement holder to make affirmative use of the land and enter upon the servient tenement in a away that would otherwise constitute a trespass.
What is a negative easement?
It is a form of a restrictive covenant. It entitles the holder to compel the landowner to restrict the owner of the servient tenement in some way – like building restrictions or other LAWFUL uses.
What are the 6 ways you can create an easement?
Reservation; implication; presecription; express grant; necessity.
What is the mnemonic for the 6 ways to create and easement?
RIPEN
How is an easement created by reservation?
The owner of a present possessory interest in land conveys title to someone but reserves a right to continue to come on the land and use it for a particular purpose. In short, the grantor passes tittle but reserves and easement interest.
How is an easement created by implication?
Only arises when an owner of a unitary tract of land subdivides that estate or when an owner owns a series of tracts and sells off one or more of them. In other words, there has been previous use. There must also be an element of necessity – for example, the subdividing causes one of the tracts to have no access to a road.
How is an easement created by prescription?
Like adverse possession, created by long and continued use, but need not be exclusive. zUse must be open, notorious, hostile, and continuous for the statutory period.
How is an easement by necessity created?
There needs to be a very strong showing of necessity. Unlike an easement by implication, there need not be prior use. Necessity is strict, like no access to a public road.
How is an easement by express grant created?
In writing. Signed by grantor. A deed allowing use of property. Manifest intent to create an easement, describe the land, identify the g’or and g’tee.
How are easements terminated?
Estoppel; necessity; destruction; release; abandonment; merger (unity of ownership); condemnation; prescription
How does termination of an easement by estoppel occur?
The servient landowner changes position in reasonable reliance on the easement holders assurances that the easement will no longer be enforced.
How does termination by necessity occur?
If you have an easement by necessity (which would include an easement by implication), the easement ends when the necessity ends. In other words, there is no longer the need.
How does termination by destruction occur?
The servient land is destroyed, no easement anymore.
How does termination by condemnation occur?
If servient land is condemned, no easement anymore. easement terminated.
What is termination by release?
Easement holder releases easement in writing. Concurrence of both owners. Amounts to a conveyance.
Termination by abandonment?
Through physical action or other indicia of intent, easement holder demonstrates an intent to permanently abandon the easement. Mere non-use may not be enough, but some non-use combined with other indicia (e.g words) may be sufficient.
Termination by unity of ownership/merger?
Easements involve two different people, by definition. If the owner of the dominant and servient tenement become one, then the easement is terminated.
What is termination of an easement by prescription?
Just as an easement can be created by prescription (adverse possession), an easement can also be terminated by prescription if the owner of the servient tenement excludes the easement holder from the usage of the easement for the prescribed statutory period of time. For example:
Adam and Brent are neighbors. Brent holds an easement that allows him to cut through Adam’s property to access a street. One day, Adam builds a wall between Brent’s property and the path over which Brent is supposed to be allowed to cross, thereby denying Brent access to the path. If this wall stays up for the statutory period of time and Brent brings no legal action to enforce his easement, his easement could be lost by prescription.
What is mnemonic for termination of easements?
SURE NAP. Stated condition; unity of ownership; Release; Estoppel; Necessity; Abandonment; Prescription.