Easements, Licenses, and Profits Flashcards
Easement
A grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another’s land
-Only for specified purpose, no right to possess or enjoy the land
-Perpetual duration unless specified otherwise (must be in writing to satisfy S/F)
Affirmative easement
The right to go onto and do something on servient land (land that is imposed upon by the easement)
Negative easement
Entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible
-Can only be expressly created
Four categories:
1. Light (i.e., blocking light from solar panels)
2. Air (i.e. building that obstructs air flow)
3. Support (i.e., eroding underground support)
4. Stream of water from an artificial flow
Easement appurtenant (“helpful to”)
Involves two parcels of land:
1. Dominant tenement, which derives the benefit
2. Servient tenement, which bears the burden
Automatically transfers with dominant tenement REGARDLESS of whether its specifically mentioned in the deed/conveyance
-Same with servient tenement unless buyer is BFP without notice
Easement in gross
Confers upon its holder only some personal or commercial advantage that is unrelated to use/enjoyment of the land
-Involves one parcel of land (servient land burdened)
-Not transferable unless for commercial purpose
-i.e., right to place billboard on another’s lot, right to swim in another’s pond, or the right of a utility company to lay power lands
Affirmative easement creation methods
- Prescription
- Implication
- Necessity
- Grant
Easement by grant
If greater than 1 year, the easement must be in writing and signed by the holder of the servient tenement
*Must also comply with formal requirements of deed creation
Easement by implication
Exception to the statute of frauds for easements created by the operation of law:
Easement Implied from Preexisting Use (“quasi-easement”)
-Previous use of servient part was apparent and continuous; and
-Parties expected the use to survive division because its reasonably necessary to the dominant tenement’s use and enjoyment
Easement Implied Without Any Existing Use
-Lots sold in a subdivision imply use of the streets to access their lots
-Holder of profit a prendre has implied easement necessary to extract minerals or materials from the servient property
Easement by necessity
When a landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land
-Servient owner has right to locate the easement
Easement by prescription
An easement acquired similarly to adverse possession:
-Continuous and uninterrupted use for the statutory period
-Open and notorious use (discoverable upon inspection)
-Actual use (in possession) that does NOT need to be exclusive
-Hostile use (without the servient owner’s consent)
Cannot be acquired in public lands
Scope of easement
Defined in grant or conditions of creation
-No unilateral expansion
A “surcharged” easement is one that exceeds its scope
-Remedy is injunction for misuse, not termination
Termination of easement (eight methods)
- Estoppel
-Servient owner materially changes position in reliance on easement holder’s assurances or representations to abandon an easement - Necessity
-When need for the easement ends unless the easement was reduced to a written express grant - Destruction
-When the servient tenement is involuntarily destroyed - Condemnation
-When the servient tenement is taken by the government through eminent domain - Release
-Holder of dominant tenenment rlease - Abandonment
- Merger
- Prescription
License
When a landowner gives another permission to enter his land for some delineated purpose
-Think license when: (1) concert tickets or (2) neighbors talking by the fence
Contrast to easement
-Not an interest in land
-Revocable at will (unless estoppel applies)
-No writing required
