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Easements, Profits, and Licenses Flashcards

1
Q

Elements of Easement

5

A

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

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2
Q

Elements of Easement:

Right to Limited Use or Enjoyment of another’s land

A

Does not include right to possess

- smaller interest than a tenant

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3
Q

Elements of Easement:

Protected against interference by 3rd Party

A

3rd parties may NOT interfere

Property interest entitled to protection

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4
Q

Elements of Easement:

Not Revocable by LO

A

Fee Simple Interest unless otherwise specified in grant

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5
Q

Elements of Easement:

Not a normal incident of ownership of the land that easement holder may own

A

Separate property interest

Does NOT flow naturally from something else you own

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6
Q

Elements of Easement:

May be created by conveyance

A

One person owns and conveys to another

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7
Q

Easement Features

Analysis for Essay) (3

A

1) Servient v. Dominant
2) Affirmative v. Negative
3) Appurtenant v. In gross

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8
Q

Servient

A

Land which is BURDENED with easement

  • suffers b/c of easement
  • lacks all of the sticks b/c easement has been granted
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9
Q

Dominant

A

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
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10
Q

Affirmative

A

Easement holder is PERMITTED to do something on the servient tenement
- most easements are affirmative

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11
Q

Negative

A

Easement holder is PROHIBITED from doing something on servient tenement

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12
Q

Appurtenant

A

Easement is ATTACHED TO THE LAND

Easement benefits the land

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13
Q

In Gross

A

Easement benefits PERSON
Land is not benefitted
- not originally recognized at CL

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14
Q

Profits a Prendre

A

Dominant tenant has right to remove a portion of the servient land or its products
- aka Profit

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15
Q

License

A

Use of Land is REVOCABLE by the servient tenant

- considered a K b/c too weak to be a true interest in land

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16
Q

Examples of Licenses

A

Short term and revocable

  • ticket to concert/play
  • invite to dinner
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17
Q

Why is a lease not considered an easement?

A

Lease gives right to occupy and possess

- easement is only right to use

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18
Q

Types of Easements

3

A

Express
Implied
Prescription

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19
Q

Express Easement

A

Written in grant or K

Verbally spoken

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20
Q

Implied Easement

A

No direct grant of easement

- exists based on the circumstances

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21
Q

Prescriptive Easement

A

Easement by adverse possession

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22
Q

Easement v. License

A

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

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23
Q

Creation Methods of Easements

4

A

1) Grant
2) Reservation to Grantor
3) Exception to Grantor
4) Reservation to 3rd Party

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24
Q

Creation Methods of Easements:

Grant

A

Express from servient tenant to dominant tenant in a deed

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25
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
26
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
27
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
28
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
29
Are there any WOL for Express Easements?
No, but "and his heirs" helps cut down on confusion
30
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
31
Implied Easements
Parties must have intended to warrant an easement | - coulda, shoulda, woulda if had thought about it
32
Types of Implied Easements | 2
Implied by Necessity | Implied by Prior Use (quasi-easement)
33
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)
34
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
35
Implied Easement by Prior Use (Quasi-easement)
Use must exist PRIOR to severance of the land and satisfy court that the easement is justified
36
Implied by Prior Use: | Must have evidence the prior use ____ and _____.
Must have evidence the prior use EXISTED and INTENDED to continue. Evidentiary fight
37
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
38
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
39
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
40
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
41
Practical Advice
Need eyes-on inspection | - see property in person so you can deal with it properly
42
Elements of Prescriptive Easements | 5
1) Open and Notorious 2) Adverse to owner's claim of right 3) Exclusive 4) Uninterrupted use 5) Continuous
43
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
44
Elements of Prescriptive Easements: | Adverse to TO's claim of right
Use impinges on TO's rights
45
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
46
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
47
Elements of Prescriptive Easements: | Uninterrupted Use
Continuous Use | - not req'd to be constant use, only continuous
48
Elements of Prescriptive Easements: | Continuous Use
Often specified by statute; use for a number of years continuously TX: 10 years
49
Possible Theories of Easements | 4
1) Prescriptive Easement 2) Implied by Dedication Doctrine 3) Zoning laws 4) Easement by custom
50
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
51
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
52
Scope of Transferability of Express Easements
1) Terms of easement | 2) If silent, apply Rule of Reason
53
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
54
Rule of Reason
Applied when easement is silent about transferability | Balancing test of benefit to dominant tenant and burden on servient tenant
55
SOL for Prescriptive Easement encroachments in TX
2 years
56
Scope of Prescriptive Easements
Original adverse use becomes basis for applying the Rule of Reason
57
What types of easements does the Rule of Reason apply to?
All types
58
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
59
Servient tenant may make original easement ____.
Exclusive
60
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
61
Rights and Duties of Servient Tenant
1) Quiet enjoyment | 2) Does not have to maintain
62
Rights and Duties of Dominant Tenant
1) No interference of Servient's rights | 2) Must maintain the easement
63
Transfer of Easement is Deed is Silent | In Gross
CL: not allowed ML: only allowed for commercial
64
Termination of Easements | 8
1) Natural Duration 2) Merger 3) Release 4) Abandonment 5) Estoppel 6) Forfeiture 7) Not mere use 8) Prescription
65
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
66
Termination of Easements: | Natural Duration of In Gross easement
CL : life of dominant tenant | ML: FS, especially if commercial
67
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
68
Termination of Easements: | Release
Dominant tenant may convey the easement back to the servient tenant - written release
69
Termination of Easements: | Abandonment
ORAL release | CONSISTENT conduct with the release (extended period of non-use
70
Termination of Easements: | Estoppel
ORAL release by dominant tenant | DETRIMENTAL RELIANCE by servient tenant's conduct
71
Termination of Easements: | Forfeiture
Dominant tenant abuses the easement and injunction remedy ineffective
72
Termination of Easements: | Not mere non-use
Dominant tenant has no duty to use the easement in order to keep it
73
Termination of Easements: | Prescription
Servient tenant unreasonably interferes for prescriptive period (the "build over" period)
74
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

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