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Property > Easements, Profits, and Licenses > Flashcards

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
Q

Creation Methods of Easements:

Reservation to Grantor

A

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

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26
Q

Creation Methods of Easements:

Exception to Grantor

A

Grantor conveys property to grantee

  • conveys all but the easement (easement already exists)
  • would not work at CL but often does under ML
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27
Q

Creation Methods of Easements:

Reservation to 3rd Party

A

Grantor conveys land to grantee but reserves an easement for someone else

  • many courts do not recognize
  • TX does not recognize
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28
Q

How can Grantor make a Reservation for 3rd Party easement in a state that does not recognize that kind of easement?

A

Grantor can reserve the easement for himself and then convey it to a 3rd party

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29
Q

Are there any WOL for Express Easements?

A

No, but “and his heirs” helps cut down on confusion

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30
Q

Doctrine of After Acquired Property

A

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
Q

Implied Easements

A

Parties must have intended to warrant an easement

- coulda, shoulda, woulda if had thought about it

32
Q

Types of Implied Easements

2

A

Implied by Necessity

Implied by Prior Use (quasi-easement)

33
Q

Implied Easement by Necessity

A

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
Q

Does it matter if the implied easement hasn’t been used in a long time or if the predecessors didn’t use it?

A

No, easement may lie dormant and yet still exist

35
Q

Implied Easement by Prior Use (Quasi-easement)

A

Use must exist PRIOR to severance of the land and satisfy court that the easement is justified

36
Q

Implied by Prior Use:

Must have evidence the prior use ____ and _____.

A

Must have evidence the prior use EXISTED and INTENDED to continue.
Evidentiary fight

37
Q

Factors courts consider as evidence of Implied by Prior Use

6

A

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
Q

Factor as evidence of Implied by Prior Use:

Necessary and Beneficial

A

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
Q

Factor as evidence of Implied by Prior Use:

Price Paid

A

The higher the price paid, the more likely the easement existed

  • paid more: benefit from easement
  • paid less: burdened from easement
40
Q

Factor as evidence of Implied by Prior Use:

Existence of Reciprocal Benefits

A

Both parties benefit from use

  • possible to be both servient and dominant tenant
  • ex: shared driveway
41
Q

Practical Advice

A

Need eyes-on inspection

- see property in person so you can deal with it properly

42
Q

Elements of Prescriptive Easements

5

A

1) Open and Notorious
2) Adverse to owner’s claim of right
3) Exclusive
4) Uninterrupted use
5) Continuous

43
Q

Elements of Prescriptive Easements:

Open and Notorious

A

OBVIOUS to someone looking at the property (reasonable person)
Use WITHOUT permission from TO
- if had permission, it would be a license

44
Q

Elements of Prescriptive Easements:

Adverse to TO’s claim of right

A

Use impinges on TO’s rights

45
Q

Elements of Prescriptive Easements:

Exclusive

A

Majority: not req’d
Minority: req’d
TX: req’d
- adverse possessor is the only one who uses the land

46
Q

Why is exclusivity required in TX for Prescriptive easement?

A

To protect LO’s rights

- how would you know if someone is using it if LO doesn’t know himself

47
Q

Elements of Prescriptive Easements:

Uninterrupted Use

A

Continuous Use

- not req’d to be constant use, only continuous

48
Q

Elements of Prescriptive Easements:

Continuous Use

A

Often specified by statute; use for a number of years continuously
TX: 10 years

49
Q

Possible Theories of Easements

4

A

1) Prescriptive Easement
2) Implied by Dedication Doctrine
3) Zoning laws
4) Easement by custom

50
Q

Possible Theories of Easements:

Implied by Dedication Doctrine

A

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
Q

Possible Theories of Easements:

Easement by Custom

A

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
Q

Scope of Transferability of Express Easements

A

1) Terms of easement

2) If silent, apply Rule of Reason

53
Q

Scope of Transferability of Express Easements:

Terms of Easement

A

Deed provisions control scope and transferability

- the more detail, the better; however, difficult to anticipate everything

54
Q

Rule of Reason

A

Applied when easement is silent about transferability

Balancing test of benefit to dominant tenant and burden on servient tenant

55
Q

SOL for Prescriptive Easement encroachments in TX

A

2 years

56
Q

Scope of Prescriptive Easements

A

Original adverse use becomes basis for applying the Rule of Reason

57
Q

What types of easements does the Rule of Reason apply to?

A

All types

58
Q

Use of Easement by Servient Tenant

A

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
Q

Servient tenant may make original easement ____.

A

Exclusive

60
Q

Location of easement is _____ to the land. (unless otherwise agreed by dominant tenant)

A

AFFIXED to the land

- servient tenant may not move the location of the easement without dominant tenant’s consent

61
Q

Rights and Duties of Servient Tenant

A

1) Quiet enjoyment

2) Does not have to maintain

62
Q

Rights and Duties of Dominant Tenant

A

1) No interference of Servient’s rights

2) Must maintain the easement

63
Q

Transfer of Easement is Deed is Silent

In Gross

A

CL: not allowed
ML: only allowed for commercial

64
Q

Termination of Easements

8

A

1) Natural Duration
2) Merger
3) Release
4) Abandonment
5) Estoppel
6) Forfeiture
7) Not mere use
8) Prescription

65
Q

Termination of Easements:

Natural Duration

A

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
Q

Termination of Easements:

Natural Duration of In Gross easement

A

CL : life of dominant tenant

ML: FS, especially if commercial

67
Q

Termination of Easements:

Merger

A

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
Q

Termination of Easements:

Release

A

Dominant tenant may convey the easement back to the servient tenant
- written release

69
Q

Termination of Easements:

Abandonment

A

ORAL release

CONSISTENT conduct with the release (extended period of non-use

70
Q

Termination of Easements:

Estoppel

A

ORAL release by dominant tenant

DETRIMENTAL RELIANCE by servient tenant’s conduct

71
Q

Termination of Easements:

Forfeiture

A

Dominant tenant abuses the easement and injunction remedy ineffective

72
Q

Termination of Easements:

Not mere non-use

A

Dominant tenant has no duty to use the easement in order to keep it

73
Q

Termination of Easements:

Prescription

A

Servient tenant unreasonably interferes for prescriptive period (the “build over” period)

74
Q

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?

A

If apparent by inspection, then easement is likely to continue
- jx divided if not apparent

Property (7 decks)

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