Easements, Profits, Licenses Flashcards
What is a License?
A license is NOT a nonpossessory interest in land.
A license is merely a privilege to go upon another’s land.
It is NOT an interest in land.
What is an Easement?
An easement is a nonpossessory interest in land. The holder of an easement has the right to use another’s land, but has no right to possess and enjoy the land.
What is a Profit?
A profit is a nonpossessory interest in land. The holder of a profit has the right to go upon another’s land and take the soil or a substance of the soil (e.g., minerals, timber), but has no right to possess and enjoy the land.
What is a Real Covenant?
A real covenant is a nonpossessory interest in land. A real covenant is a written promise to use or not to use land in a certain manner, and does not confer a right to possess the land on the covenantee.
What is the effect of a profit holder’s using the profit beyond its legal scope?
The profit automatically terminates.
As with easements, excessive use of a profit surcharges the servient estate. In the case of an easement, the servient landowner’s remedy is an injunction of the excess use; the easement does not automatically terminate. In the case of a profit, however, the result of the surcharge is to extinguish the profit. Thus, the servient landowner need NOT enjoin the use or seek to terminate the profit. Moreover, the scope of the profit is NOT increased to meet the holder’s needs.
If the holder of an easement uses it beyond its legal scope, the easement is __________.
- Terminated
- Icreased
- Surcharged
An easement is said to be surcharged if the holder uses it in a way that exceeds its legal scope.
If the servient estate is surcharged, the servient owner may enjoin the excess use and possibly sue for damages if the land has been harmed. However, such use does not automatically terminate the easement or give the servient owner a power of termination.
Someone whose interest in land benefits her in her possession of another tract of land holds __________.
- A license
- An Easement in Gross
- An Easement Appurtenant
- A Servien Tenement
Someone whose interest in land benefits her in her possession of another tract of land holds an Easement Appurtenant.
The holder of an easement has the right to use another’s land (i.e., the servient tenement), but has no right to possess that land.
If the holder is benefited in her possession of her own parcel of land (i.e., the dominant tenement), the easement is deemed appurtenant. If the holder is not benefitted in her possession of her own parcel, the easement is deemed in gross.
A license is not an interest in land; it is merely a privilege to go upon another’s land. Moreover, it need not benefit the licensee in her capacity as the owner of another tract of land.
If A and B own adjoining tracts of land, and A expressly grants to B the right to cross A’s tract, B has __________.
- A Negative Easement in Gross
- A Negative Easement Appurtenant
- An Affirmative Easement Appurtenant
- An Affirmative Easement in Gross
B has an Affirmative Easement Appurtenant.
The holder of an easement has the right to use another’s land (the servient tenement), but has no right to possess the land.
Affirmative easements entitle the holder to enter upon the servient tenement and make an affirmative use of it (e.g., for access to and from the holder’s land).
If the holder is benefited in her physical use or enjoyment of another tract of land (the dominant tenement), the easement is deemed appurtenant.
B’s use and enjoyment of her tract is benefited by the right to use A’s tract for access (a right-of-way easement), and thus is an affirmative easement appurtenant.
May the public acquire a prescriptive easement in private land?
- No, because easements in public lands cannot arise by prescription
- No, because exclusive use is required to acquire an easement by prescription
- Yes, if the public’s use of the land is open and notorious, adverse, and continuous for the statutory period
- Yes, if the public uses the land at the landowner’s invitation
Yes, the public may acquire a prescriptive easement in private land if the public’s use of the land is open and notorious, adverse, and continuous for the statutory period. The process for acquiring an easement by prescription is analogous to acquiring title to property by adverse possession, except that the use need not be exclusive (i.e., the user may share the use with the owner or other easement claimants). Adverse use means a use made without the landowner’s permission. Thus, if the public uses the land at the landowner’s invitation, the public will NOT acquire a prescriptive easement.
Because exclusive use is NOT required to acquire an easement by prescription, a claimant may share the use with the true owner or other members of the public. Therefore, the public may acquire a prescriptive easement in private land if members of the public use the land in a way that meets the requirements for prescription outlined above, even if other claimants also are making use of the same portion of the land.
Although easements in public lands cannot arise by prescription, the public may acquire a prescriptive easement in private land as described above.
When can an Easement by Necessity arise?
Easements by Necessity arise only when the owner of a single tract divides it, leaving a portion of the tract with no access to a public road or utility line.
Example:
The facts in this question do not indicate that the vintner ever owned both the vineyard and the undeveloped lot; therefore, no easement by necessity can arise.
Is a License revocable?
Generally, it is revocable at will.
However, it is irrevocable when a licensee justifiably relies on a grant of a long-term license and spends a substantial sum of money or labor in reliance on the license. In that case, the licensor is estopped from revoking this license.
Example: A landowner granted his land “to my nephew for life, remainder to my friend.” The friend, with the nephew’s permission, built a house on the land and lived in it without paying rent for 25 years, at which time the nephew brought an action to evict the friend.
The nephew is estopped from revoking the friend’s license.
What is the result of a written easement that is recorded?
Provides NOTICE to future buyers of the legal interest held in that land.
Make sure not to be fooled with answers that stipulate, “whether or not they have notice of it…”
Profit Appurtenant and Dominant Estate
You cannot independently transfer a Profit Appurtenant without also transferring the Dominant Estate it benefits.
I.E.:
O conveyed eastern parcel that contained a resort. Deed also granted to, “the neighbor and his assigns, all hunting rights and use of western parcel for the benefit of resort.” Neighbor assigned hunting rights to a hunter.
Neighbor cannot transfer the hunting rights to the hunter, without ALSO transferring the eastern parcel as well.
