Easements, Profits, and Licenses Flashcards
What is an “easement”?
It is a non-possessory interest in land, such that one has the right to use another’s land. Profits are generally lumped under the “easement” definition, because for most practical purposes they are treated the same way; however, strictly speaking, a “profit” is the right to enter another’s land and remove something from it (e.g., minerals, water, wood).
What are the six ways in which easements may be created?
(NEED PIE)
- Expressly (will, Deed, Grant or Reservation)
- Estoppel
- Necessity
- Implication
- Prescription
- Eminent Domain
MNEMONIC: NEED PIE (Necessity; Expressly; Eminent Domain; Prescription; Implication; Estoppel)
There are two, general classifications of easement. What are they?
- Affirmative easements: One is allowed to use the “servient estate”. Remember: I CAN USE YOURS.
- Negative easements: One can restrict the use of another piece of land, the “servient estate.” Remember: YOU CAN”T USE YOURS.
What is an “easement appurtenant”?
An “easment appurtenant” is an easement granted to an idividual only in his status as possessor of a certain piece of land. The easement is useful tothe individual only because he possesses that particular piece of land. The parcel of land possessed by the individual who holds the easement is known as the “dominant tenement/estate”; the pieced of land “burdened” by the easement is known as the “servient tenement/estate”.
You can easily recognize an easement appurtenant, as opposed to an easement in gross, because an easement appurtenant must involve at least two pieces of land; an easement in gross involves only one, the “burdened” or servient estate.
What is an “easement in gross”?
An “easement in gross” benefits an individual or business, as opposed to the owner of a specific piece of land. The most common type of easement in gross is that of public utilities. (the opposite number, an “easement appurtenant”, benefits a specific piece of land).
An easement in gross is distinguished from an easement appurtenant in that it involves only one piece of land, a servient estate; an easement appurtenant must involve at least two pieces of land, a dominant and servient estate.
Are most easements considered “easements appurtenant,” or “easements in gross”?
Most easements are characterized as appurtenant easements - an easement that is specific to a piece of land (e.g., rights-of-way).
Why does it matter whether an easement is characterized as an “easement appurtenant” or an “easement in gross”?
Conveyancing. An easement appurtenant is considered part of the dominant estate; when the ownership of the estate is transferred, the easement is, too, either explicitly or implicitly.
An easement in gross, on the other hand, cannot be conveyed unless the grantor of the easement expressly permits it. This is the traditional rule. However, according to modern courts, commercial easements in gross (those granted for business reasons) are freely alienable barring an expressed intent otherwise. Note that, however, conveying the servient tenement automatically conveys the easement, either express or implied.
What is the minimum number of land tracts necessary for an appurtenant easement?
Two - there must be a dominant estate/tenement and a servient estate/tenement.
This feature is an easy means of distinguishing appurtenant easements from easements in gross; easements in gross involve only one piece of land.
NOTE: In the case of subsequent subdivisions, there may be more than one dominant estate.
What is a “servient estate/tenement”?
It is the land which the holder of an easement (the “dominant estate” holder) has the right to use.
REMEMBERING “DOMINANT” AND “SERVIENT” TENEMENTS.
A “dominant tenement/estate” is a parcel of land possessed by an individual who enjoys an “easement appurtenant” over a “servient estate” (the land burdened by the easement). The most common kind of easement appurtenant is a right-of-way.
For this image, you have to know that “serviette” is an English word for table napkin.
Mental picture: Imagine a vast field, stretching across the horizon. The left half is entirely covered with dominos (the “dominant estate”). The right half is covered with billowy yellow “serviettes” (the “servient estate”). Imagine a raised path, like St. Louis’ Gateway to the West, rising over the napkins, in gleaming steel. An endless procession of cats is walking from the “domino” side, over the pathway, purring (Purr: appurtenant).
What are the requirements for an implied easement?
- The two pieces of land must have been under common ownership before severance;
- Use of one part of the land by another part must have been apparent;
- And continuous;
- The use must be reasonably necessary for the enjoyment of the dominant estate.
MNEMONIC: COCAiNE: (Common Ownership; Continuous; Apparent; Necessary)
Are implied easements considered “easements appurtenant” or “easements in gross”?
They are appurtenant easements, i.e., they are considered annexed to the land. This is so because it was transferring one of two pieces of property, under common ownership, that created the implied easement; thus the easement is inextricably connected with the ownership of land.
Must implied easements be in writing to satisfy the Statute of Frauds?
Trick question!!
Implied easements are created by operation of law, not expression of the parties, so they cannot be in writing. An implied easement arises when a tract of land under one owner is divided, and one part of the land had been used for the benefit of the other part. There cannot be an implied easement where there was never common ownership; furthermore, the implied easement arises immediately when the common ownership is severed, unlike an “easement by necessity,” which requires only that the land had been under common ownership at some time in the past.
What’s the difference between implied easements known as “implied grants,” and those called “implied reservations”?
If the easement is in favor of the conveyee and appurtenant to the trace conveyed = implied grant; if in favor of the conveyor and appurtenant to tract retained = implied reservation.
REMEMBER: Retain/reservation.
What’s the difference between an easement by implied grant (or reservation), and a quasi-easement?
Ownership of the dominant and servient tenements. Before one of the tracts is conveyed, the easement is a quasi-easement; afterwards, it becomes an easement by implied grant or implied reservation, depending on which tract is transferred away.
What is an “easement by necessity”?
It is an easement whereby enjoyment of one parcel of land strictly requirs use of another. Typically, one of the plats has no access to a public highway without trespassing on the other plat. The requirements of such an easement are:
- Common ownership of the dominant and servient estate at some time in the past; and
- Easement lasts only as long as the necessity does.
What are the requirements of a “prescriptive easement” (also known as an “easement by prescription”)?
An easement by prescription requires use of another’s property that is:
1. Actual;
2. Open and notorious;
3. Continuous (during statutory period; at common law, 20 years);
4. Exclusive; (not as a member of the general public – does not mean owner is excluded); and
5. Hostile and adverse (non-permissive).
MNEMONIC: Open EACH (Open; Exclusive; Actual; Continuous; Hostile)
An easement by prescription – the right to use land under certain conditions – has a counterpart in the ownership of land. What is it?
Adverse possession. The requirements for the two are the same, requiring actual, open and notorious, continuous, and adverse use (prescriptive easement), or possession(adverse possession), for the statutory period (at common law, 20 years). Note that it’s the exclusivity that distinguishes the two – for an easement by prescription, the owner need not be excluded, it’s just that the use cannot be as a member of the general public; for adverse possession, the adverse possessor must treat the land as his own.
What are the seven, general ways an easement can be terminated?
- Requirement fulfilled (road built, condiion satisfied);
- Release in writing;
- Merger of dominant and servient estataes;
- Abandonment (mere non-use is insufficient; need acts showing clear intent to abandon);
- Adverse use (servient tenement holder’s use interferes with or prevents easement holder’s use for the statutory period);
- Servient estate condemned or destroyed;
- Estoppel.
(Also, an easement by necessity terminates when the necessity no longer exists).
MNEMONIC: DREAM CAR (Destruction; Requirement; Estoppel; Abandonment; Merger; Condemnation; Adverse use; Release)
Cheops and Cleopatra are adjoining landowners. Cleopatra has a luxurious palace with a sun deck, where she likes to sunbathe nude. Cleopatra turns over her priceless string of pearls to Cheops, in return for his agreement not to build on his own land so as to shade Cleopatra’s porch. Is an easement created?
Yes. This is a “negative easement,” wherein a landowner agrees to restrict the use of his land (the servient tenement) for the benefit of another (the dominant tenement).
The counterpart of a “negative” easement is an “affirmative” easement, which is far more common, giving the dominant tenement holder the privilege to use another’s land (the servient tenement/estate).
Tarzan owns a heavily-wooded tract of land which abuts a public highway on two sides. He sells Jane half of the land. However, between Jane’s land and the highway is a deep ravine that Jane cannot cross in her jeep; she must either swing across on a handy vine, or drive across Tarzan’s land to get out. Since it’s not impossible for Jane to get out without trespassing on Tarzan’s land, will she be denied an easement by necessity over Tarzan’s property?
No; “necessity” implies substantial impracticability, not absolute impossibility. Since the other requirement for an easement by necessity is met - the two tracts were under common ownership sometime in the past - Jane will have an easement by necessity.
Cheops buys a prime lot in the Great Plains Development, ad builds a pyramid on the part nearest the road. He subsequently sell back half of the lot to Khufu, who builds his own pyramid there. Khufu has no access to a main road. Will he be able to cut across Cheops’ property to get to the road?
Yes, under an “easement by necessity”. Khufu fulfills the requirement of the easement because:
1. The dominant and servient estates were formerly under common ownership;
2. Strict necessity exists (Khufu has no other means of getting to a public highway).
NOTE: Common ownership need not have been in the immediate past.
Hatfield has a right-of-way over McCoy’s adjacent land. Can Hatfield transfer his right-of-way without transferring any part of his land?
No. A right-of-way is an “easement appurtenant”; it is annexed to the land and cannot be transferred separately from the land.
Fred owns a tract of land bounded o one side by a lake, the rear by quicksand, and the other by the Grand Canyon. The remaining side abuts a public highway. Fred sells the rare portion of his land to Barney, who cannot get to the public highway except through Fred’s land. After ten years of cutting across Fred’s property, tourist interest in the Grand Canyon dries up and the government decides to cement it over, giving Barney unlimited access to the rest of the world. Can he still cut across Fred’s property?
No. Barney had an “easement by necessity” - an esement created when a piece of property under common ownership is divided, making, typically, ingress and egress substantially impractical for one of the plots. Here, once the Canyon is filled in, the easement is no longer necessary, so it ceases.
NOTE: There is not an implied easement here, since there is no evidence that, prior to severance use of Fred’s tract by Barney’s tract took place.
