Easements, Profits, and Licenses Flashcards
Elements of Easement
5
1) Right to limited use and enjoy another’s land
2) Protected against interference by 3rd parties
3) Not revocable by LO
4) Not a normal incident of ownership of land that easement holder may hold
5) May be created by conveyance
Elements of Easement:
Right to Limited Use or Enjoyment of another’s land
Does not include right to possess
- smaller interest than a tenant
Elements of Easement:
Protected against interference by 3rd Party
3rd parties may NOT interfere
Property interest entitled to protection
Elements of Easement:
Not Revocable by LO
Fee Simple Interest unless otherwise specified in grant
Elements of Easement:
Not a normal incident of ownership of the land that easement holder may own
Separate property interest
Does NOT flow naturally from something else you own
Elements of Easement:
May be created by conveyance
One person owns and conveys to another
Easement Features
Analysis for Essay) (3
1) Servient v. Dominant
2) Affirmative v. Negative
3) Appurtenant v. In gross
Servient
Land which is BURDENED with easement
- suffers b/c of easement
- lacks all of the sticks b/c easement has been granted
Dominant
Land which is BENEFITED by the easement, if any exists
- more valuable b/c of easement
- has not only its own sticks but also the sticks of the land with the easement
Affirmative
Easement holder is PERMITTED to do something on the servient tenement
- most easements are affirmative
Negative
Easement holder is PROHIBITED from doing something on servient tenement
Appurtenant
Easement is ATTACHED TO THE LAND
Easement benefits the land
In Gross
Easement benefits PERSON
Land is not benefitted
- not originally recognized at CL
Profits a Prendre
Dominant tenant has right to remove a portion of the servient land or its products
- aka Profit
License
Use of Land is REVOCABLE by the servient tenant
- considered a K b/c too weak to be a true interest in land
Examples of Licenses
Short term and revocable
- ticket to concert/play
- invite to dinner
Why is a lease not considered an easement?
Lease gives right to occupy and possess
- easement is only right to use
Types of Easements
3
Express
Implied
Prescription
Express Easement
Written in grant or K
Verbally spoken
Implied Easement
No direct grant of easement
- exists based on the circumstances
Prescriptive Easement
Easement by adverse possession
Easement v. License
The length of the term is and how it was granted help define whether it is an easement or a license
- the longer the term and given in a grant, the more likely an easement
Creation Methods of Easements
4
1) Grant
2) Reservation to Grantor
3) Exception to Grantor
4) Reservation to 3rd Party
Creation Methods of Easements:
Grant
Express from servient tenant to dominant tenant in a deed
Creation Methods of Easements:
Reservation to Grantor
Grantor conveys land but reserves an easement for himself
- Ex: G conveys land next to lake to A but keeps easement so that he can still access the lake
Creation Methods of Easements:
Exception to Grantor
Grantor conveys property to grantee
- conveys all but the easement (easement already exists)
- would not work at CL but often does under ML
Creation Methods of Easements:
Reservation to 3rd Party
Grantor conveys land to grantee but reserves an easement for someone else
- many courts do not recognize
- TX does not recognize
How can Grantor make a Reservation for 3rd Party easement in a state that does not recognize that kind of easement?
Grantor can reserve the easement for himself and then convey it to a 3rd party
Are there any WOL for Express Easements?
No, but “and his heirs” helps cut down on confusion
Doctrine of After Acquired Property
If grantor purports to warrant a deed to land he does not yet own, then the grantee will automatically receive the land if the grantor later acquires the property
Implied Easements
Parties must have intended to warrant an easement
- coulda, shoulda, woulda if had thought about it
Types of Implied Easements
2
Implied by Necessity
Implied by Prior Use (quasi-easement)
Implied Easement by Necessity
Landlocked property has implied easement in order to access the property
- once necessity is eliminated, so is the easement
- Ex: road built adjacent to landlocked property (easement eliminated once road is open for use)
Does it matter if the implied easement hasn’t been used in a long time or if the predecessors didn’t use it?
No, easement may lie dormant and yet still exist
Implied Easement by Prior Use (Quasi-easement)
Use must exist PRIOR to severance of the land and satisfy court that the easement is justified
Implied by Prior Use:
Must have evidence the prior use ____ and _____.
Must have evidence the prior use EXISTED and INTENDED to continue.
Evidentiary fight
Factors courts consider as evidence of Implied by Prior Use
6
1) Use was APPARENT or DISCOVERABLE by reasonable inspection
2) Permanent or continuous
3) Necessary and Beneficial
4) Price paid for land
5) Existence of reciprocal benefits
6) Language of Deed
Factor as evidence of Implied by Prior Use:
Necessary and Beneficial
Dominant tenant must receive significant benefit b/c courts don’t want to restrict servient tenant’s rights without really good reason to do so
Factor as evidence of Implied by Prior Use:
Price Paid
The higher the price paid, the more likely the easement existed
- paid more: benefit from easement
- paid less: burdened from easement
Factor as evidence of Implied by Prior Use:
Existence of Reciprocal Benefits
Both parties benefit from use
- possible to be both servient and dominant tenant
- ex: shared driveway
Practical Advice
Need eyes-on inspection
- see property in person so you can deal with it properly
Elements of Prescriptive Easements
5
1) Open and Notorious
2) Adverse to owner’s claim of right
3) Exclusive
4) Uninterrupted use
5) Continuous
Elements of Prescriptive Easements:
Open and Notorious
OBVIOUS to someone looking at the property (reasonable person)
Use WITHOUT permission from TO
- if had permission, it would be a license
Elements of Prescriptive Easements:
Adverse to TO’s claim of right
Use impinges on TO’s rights
Elements of Prescriptive Easements:
Exclusive
Majority: not req’d
Minority: req’d
TX: req’d
- adverse possessor is the only one who uses the land
Why is exclusivity required in TX for Prescriptive easement?
To protect LO’s rights
- how would you know if someone is using it if LO doesn’t know himself
Elements of Prescriptive Easements:
Uninterrupted Use
Continuous Use
- not req’d to be constant use, only continuous
Elements of Prescriptive Easements:
Continuous Use
Often specified by statute; use for a number of years continuously
TX: 10 years
Possible Theories of Easements
4
1) Prescriptive Easement
2) Implied by Dedication Doctrine
3) Zoning laws
4) Easement by custom
Possible Theories of Easements:
Implied by Dedication Doctrine
Through conduct, consent to use is implied
- TX likes this doctrine
- ex: owner never stops ppl from accessing the beach in front of his house
Possible Theories of Easements:
Easement by Custom
Ancient use
Conduct began long before anyone could remember
- TX does not like this doctrine
- ex: public beach opened to the public when settlers came to the country
Scope of Transferability of Express Easements
1) Terms of easement
2) If silent, apply Rule of Reason
Scope of Transferability of Express Easements:
Terms of Easement
Deed provisions control scope and transferability
- the more detail, the better; however, difficult to anticipate everything
Rule of Reason
Applied when easement is silent about transferability
Balancing test of benefit to dominant tenant and burden on servient tenant
SOL for Prescriptive Easement encroachments in TX
2 years
Scope of Prescriptive Easements
Original adverse use becomes basis for applying the Rule of Reason
What types of easements does the Rule of Reason apply to?
All types
Use of Easement by Servient Tenant
May continue to use and enjoy so long as he doesn’t interfere with dominant tenant’s use
May grant multiple easements on same path so long as doesn’t interfere with other tenant’s use
Servient tenant may make original easement ____.
Exclusive
Location of easement is _____ to the land. (unless otherwise agreed by dominant tenant)
AFFIXED to the land
- servient tenant may not move the location of the easement without dominant tenant’s consent
Rights and Duties of Servient Tenant
1) Quiet enjoyment
2) Does not have to maintain
Rights and Duties of Dominant Tenant
1) No interference of Servient’s rights
2) Must maintain the easement
Transfer of Easement is Deed is Silent
In Gross
CL: not allowed
ML: only allowed for commercial
Termination of Easements
8
1) Natural Duration
2) Merger
3) Release
4) Abandonment
5) Estoppel
6) Forfeiture
7) Not mere use
8) Prescription
Termination of Easements:
Natural Duration
Terminates by express terms or naturally
- Presumption if appurtenant: FS (whether express, implied, or prescriptive)
- May be limited in deed
- In Gross
- Licenses upon revocation
Termination of Easements:
Natural Duration of In Gross easement
CL : life of dominant tenant
ML: FS, especially if commercial
Termination of Easements:
Merger
Dominant and Servient tenements reunited
- can’t have an easement for yourself on your own land
- possible to recreate if decided to sell the land
- written release
Termination of Easements:
Release
Dominant tenant may convey the easement back to the servient tenant
- written release
Termination of Easements:
Abandonment
ORAL release
CONSISTENT conduct with the release (extended period of non-use
Termination of Easements:
Estoppel
ORAL release by dominant tenant
DETRIMENTAL RELIANCE by servient tenant’s conduct
Termination of Easements:
Forfeiture
Dominant tenant abuses the easement and injunction remedy ineffective
Termination of Easements:
Not mere non-use
Dominant tenant has no duty to use the easement in order to keep it
Termination of Easements:
Prescription
Servient tenant unreasonably interferes for prescriptive period (the “build over” period)
Termination of Easements:
Is it possible to bind future tenants in the sale of servient tenement by prescriptive use or implied by prior use easement?
If apparent by inspection, then easement is likely to continue
- jx divided if not apparent
