Easements - Right to Use

Question 1

What is an easement appurtenant?

Answer 1

An easement appurtenant involves two tracts of land:

1) Dominant parcel has the benefit, which runs to grantees
2) Servient parcel has the burden, which runs to grantees with notice

This passes with transfer of the benefited land, regardless of whether it was mentioned in the conveyance. The burden of the easement also passes automatically with the servient estate unless the new owner is a BFP with no actual or constructive notice of the easement.

Question 2

How are easements created?

Answer 2

Creation of easements:

1) Express grant or reservation (Statute of Frauds applies)
a) An oral grant creates a license, which is not an interest in land

2) Implication—by operation of law
a) By use existing before a tract was divided
b) By necessity for a landlocked parcel

3) Prescription—acquired through adverse, open and notorious, and continuous use for the statutory period

Question 3

How are easements terminated?

Answer 3

Easements can be terminated (outside of terms of easement):

• unity of ownership or merger
• release
• abandonment
• estoppel
• prescription
• end of necessity

Question 4

What are real covenants?

Answer 4

Real covenants run with the land. These are written promises to do or refrain from doing something on land, with a usual remedy of money damages.

Requirements for burden to run to later grantees: intent, notice, horizontal privity, vertical privity, touch and concern

Requirements for benefit to run: intent, vertical privity, touch and concern

Question 5

What are equitable servitudes?

Answer 5

Equitable servitudes are covenants with equitable remedies (i.e., injunction, specific performance).

These are implied from a common scheme for development if notice exists.

Requirements for burden to run: intent, notice, touch and concern

Requirements for benefit to run: intent, touch and concern

Equitable defenses apply (i.e., unclean hands, estoppel, acquiescence, changed neighborhood conditions)

Question 6

What are the two types of easements?

Answer 6

An easement is a non-possessory interest in land involving a right of use.

There are:

• easement appurtenant: when the easement directly benefits the use and enjoyment of a specific piece of land
• easement in gross: there is only a servient estate. See utility easements.

Question 7

A and B were neighbors with C, and the three of them orally agreed on an easement.

Is this an express easement?

Answer 7

This is not an express easement because it must be in writing.

Question 8

What are implied easements?

Answer 8

The implied easements are by prior use, apparent and continuous use exists on the “servient” part, reasonably necessary to enjoy the “dominant” part, and court determines that parties intended the use to continue after division of land

Question 9

What is an implied easement by prior use?

Answer 9

The implied easement by prior use exists if commonly owned land is severed (now there is a dominant and a servient estate), during the time of common ownership there was a use by the common owner, and the previous use is apparent and continuous, and its use is reasonably necessary for the continued enjoyment of the now dominant estate.

Question 10

A decided to sell part of his ranch, so he sold the half fronting the highway. Previously, he had used a road on the portion sold to get to and from the highway. In the deed, he made no provision to retain an easement to continue using the road across that land to get to the highway.

The new owner B refused to recognize A’s right to use the road and tried to fence A off. Now A has to use another road on the rear of his property that is very inconvenient. Can A continue to use the road across the land sold to B?

Answer 10

Yes. A has an implied easement by prior use.

A severed the land. There was a common owner (A) and the previous use is apparent and continuous and is reasonably necessary for him to enjoy his land.

Question 11

What is an implied easement by necessity?

Answer 11

An implied easement by necessity exists when property is landlocked. This easement is recognized because it is presumed that individuals do not intend to own land that they cannot legally access.

To create: must have been common ownership of the land that was severed and at time of severance the dominant estate became landlocked and there is a strict necessity for access to a public road.

Question 12

What is an easement by prescription?

Answer 12

An easement by prescription arises like title by adverse possession but is only use, not possession.

To create an easement by prescription:
- must be actual use of the land of another and that use must be visible and notorious, adverse (no consent), continuous and uninterrupted.

Question 13

What is the time period needed for a prescriptive easement?

Answer 13

Must include actual use of the land by another and that use if visible and notorious, adverse (no consent), continuous, and uninterrupted.

20 years, otherwise 10 years in TX

Question 14

A gave an easement to B for the benefit of his neighboring land over A’s property, and the easement was properly recorded. Later B sold his lot to C and did not mention the easement in the deed.

Can C use the easement?

Answer 14

C can use the easement. This is an easement appurtenant (dominant and servient parcels) and the benefit goes automatically along with the dominant estate, whether it is mentioned or not in the conveyance. This easement by appurtenant cannot be transferred separately from the dominant estate.

Question 15

How does transfer work for an easement in gross?

Answer 15

An easement in gross creates only a servient estate. These are always binding on subsequent holders (burden) of servient estates, even if the easement is not in their deeds as long as the subsequent holder had notice.

To transfer an easement in gross, there is no issue transferring the benefit from one commercial entity to another commercial entity BUT the benefits of easements in gross that are personal cannot be transferred.

Question 16

If an easement is silent or was created without a writing, what are the two presumptions?

Answer 16

If an easement is silent or was created without a writing, one can assume:

• that the easement is perpetual
• use is that of reasonable development of the dominant easement

Question 17

What is the holder of an easement’s responsibility regarding repairs?

Answer 17

The easement holder must keep the easement in repair and can always go on the servient estate to repair the easement. The easement holder must make reasonable restoration of servient estate after repairs.

*Only an obligation for necessary repairs, whereas servient estate has no obligation of repair unless stated

Question 18

What is “unity of ownership or merger”?

Answer 18

Unity of ownership or merger is one of the ways to terminate an easement. This is when the dominant and servient estates come together in the same owner, which destroys the easement.

Once an easement is terminated this way, it is dead and never revives.

Question 19

In terms of terminating an easement, what is release?

Answer 19

A valid release complies with the Statute of Frauds and all deed formalities terminate an easement.

Question 20

In termination, what is abandonment?

Answer 20

The intent to abandon must be manifested by taking some physical act on the property itself that would show the intent to abandon. The physical act is by the non-abandoning party.

Question 21

A had the easement to go to the beach over B’s lot. He called B and “released” the easement, saying he would never use the easement again. Thirty years went by and the easement was never used.

Has the easement been abandoned?

Answer 21

No, the easement has not been abandoned. There must be an intent to abandon with some physical act on the property itself. A’s lack of action does not count - B has to do something to demonstrate that the lot has been abandoned (like building a pool on it).

Question 22

What is termination by estoppel?

Answer 22

Two elements for termination by estoppel:

• holder of the dominant estate relinquishes; and
• change of position in reliance by the holder of the servient estate

Question 23

What is termination by prescription?

Answer 23

Owner of servient estate must stop the use of the easement and keep it stopped for the statutory period.

Question 24

What is termination by end of necessity?

Answer 24

Once the necessity that created an easement by necessity ceases to exist, so does the easement.

Question 25

What is a license?

Answer 25

A license is a limited privilege of use and is NOT a property interest. This is a contract right and is revocable at the will of the licensor.

Anytime an easement is attempted but fails due to Statute of Frauds, the result is a license.

Question 26

What are two types of licenses to look out for?

Answer 26

1. Tickets are always licenses. A license can be revoked but contract damages may be imposed.
2. Irrevocable license - license + $ spent on property furthering the license.

Question 27

What is an irrevocable license?

*also known as easement by estoppel

Answer 27

An irrevocable license is a license + money spent on property furthering the license.

If money is spent on the property in furtherance of that oral license, the license becomes irrevocable and is just as good as an easement, and can be enforced under principles of estoppel.

Question 28

To acquire a prescriptive easement on property, the claimant’s use does not need to be __________.

A continuous

B adverse

C exclusive

D open and notorious

Answer 28

Exclusive use is not required in order to acquire a prescriptive easement. Acquiring a prescriptive easement is analogous to acquiring 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).

Question 29

Which of the following acts will terminate an easement?

A Voluntary destruction of the servient estate.

B Nonuse of the easement for the statutory period.

C Use of the easement beyond its legal scope.

D Condemnation of the servient estate.

Answer 29

Condemnation of the servient estate will terminate an easement. The easement holder may be entitled to compensation for the value lost.

Use of the easement beyond its legal scope will not terminate an easement. Instead, the easement is surcharged, and the servient owner may sue to enjoin the use.

Voluntary destruction of the servient estate (e.g., tearing down a building to erect a new one) will not terminate an easement. On the other hand, involuntary destruction of the servient estate (e.g., by fire or flood) will extinguish the easement.

Question 30

A landowner and her neighbor owned adjoining parcels of land. The landowner’s property was situated to the west of the neighbor’s property. A highway ran along the east of the neighbor’s property. Twelve years ago, the landowner asked the neighbor if it would be all right for the landowner to use an eight-foot strip along the northern part of the neighbor’s land to access the highway. The only other way for the landowner to get to the highway was to use a one-lane unpaved road that meandered through the woods for two miles. The neighbor agreed, and the landowner used the strip of land regularly to access the highway. The statutory period for adverse possession in this jurisdiction is 10 years.

What is the landowner’s interest in the neighbor’s eight-foot strip of land?

Answer 30

The landowner’s interest in the neighbor’s eight-foot strip of land is not an easement. Landowner only has a “license” (i.e., a revocable privilege) to use the land.

Because an easement is an interest in land, the Statute of Frauds applies. Here, the agreement between the landowner and the neighbor was not in writing; thus, the Statute of Frauds requirements for the creation of an express easement were not met.

This is not an easement by necessity because facts do not indicate that the landowner’s and the neighbor’s parcels were once part of a common tract, and the landowner has an alternate, albeit inconvenient, way to access the highway-the one-lane road.

Question 31

T/F: The holder of the dominant estate has the right to choose the location of an easement by necessity.

Answer 31

False. The holder of the servient estate has the right to choose the location of an easement by necessity. An easement by necessity arises when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line. The owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient.

When the owner of an easement uses it in a way that exceeds its legal scope (i.e., the easement is surcharged), the servient landowner may enjoin the excess use and possibly collect damages.

Question 32

T/F: An easement in gross is for the holder’s personal pleasure and is not transferable.

Answer 32

True. An easement in gross that serves an economic or commercial interest is though.

Question 33

T/F: An easement can be reserved only for the grantor.

Answer 33

True. An attempt to reserve an easement for anyone else is void.

Question 34

T/F: When lots are sold in a subdivision with reference to a recorded plat or map that shows streets leading to the lots, buyer of the lots have implied easements to use the streets to access their lots.

Answer 34

True.

Question 35

T/F: Overuse or misuse of an easement does not terminate the easement.

Answer 35

True.

Question 36

How is an easement abandoned?

Answer 36

When its holder demonstrates by physical action an intent to permanently abandon the easement. Merely expressing a wish to abandon does not extinguish the easement, neither does mere nonuse.

Question 37

T/F: Condemnation of the servient estate extinguishes all easements.

Answer 37

True.

Question 38

What is the result if a grantor orally grants an easement for more than one year?

Answer 38

An easement is not created because more than one year must satisfy the Statute of Frauds. instead the grantee has a license, which is revocable at the will of the would-be grantor.

Question 39

A woman owned two adjacent parcels: east and west. The east parcel fronts an unpaved road and the west parcel faces a major highway. The woman conveyed the east parcel to her son “together with the right of way of the west parcel to the highway.”

The woman died. Her will devised the west parcel “to son for life, remainder to my daughter.”

The son executed a deed to convey the east and west parcels to his friend in fee simple. Six months later, the son died and the daughter took possession of the west parcel. She brought an appropriate action to enjoin the friend from using right of way.

Who should prevail?

A - Daughter, because merger extinguished the easement

B - The friend because he has an easement by necessity.

C - The friend because he has the easement granted by the woman to her son.

Answer 39

(C) The friend should prevail because he has the easement granted by woman to her son. The east parcel conveyance by mother to son “together with the right of way of the west parcel to the highway” was an express easement. It was never terminated by merger and the friend and there is still a valid easement over the daughter’s property.

(A) There is no merger because the servient estate did not last as long as or longer than the duration of the dominant estate. The easement for the servient estate was created when there were already separate parcels of land. The son also had different interests in the land - a fee simple in the dominant estate and a life estate in the servient estate.

(B) There was no easement by necessity. There was an unpaved road in front of the east parcel.

Question 40

A woman who owned a parcel of land had direct access to the main road by an unpaved road, but she thought her neighbor’s road across his property would be more convenient. So she began doing so. He did not discovery that the woman was using this driveway until 2 years later. At the time, he wrote her a letter protesting her use of the driveway but she did not care and used the road for 20 years. She filed an action for declaratory judgment claiming a prescriptive right to use the driveway on the neighbor’s parcel.

Which of the following is the most accurate regarding the woman’s use of the driveway now?

A - Prescriptive period began to run when the woman first began using the driveway because the woman was in open and notorious possession, despite the fact the man did not know of it.

B - The prescriptive period began to run when the woman first began using the driveway despite the fact that, at that time, she was sharing her use with the man.

Answer 40

(B) The woman’s first use started the prescriptive period run. There is no requirement of exclusivity to obtain an easement by prescription. The lack of the man’s knowledge is irrelevant. Prescriptive easements are from adverse use whereas adverse possession is from title - she did not have any possession of the neighbor’s driveway.

Question 41

A landowner and her neighbor owned adjoining tracts of land. No public road abutted the neighbor’s land, so the landowner granted the neighbor an express easement over the north 25 feet of the landowner’s land. However, the following month the county extended the public road to the neighbor’s land, and he ceased using the easement for ingress and egress.

Twenty years later, the neighbor conveyed the easement to his friend, who owned the land adjoining the other side of the landowner. The following year, the neighbor conveyed his land to the landowner. None of the parties has used the easement since the public road was extended. The jurisdiction has a 15-year statute of limitations for acquiring property interests by adverse possession.

At what point was the easement extinguished?

Answer 41

The easement was extinguished when the neighbor conveyed his land to the landowner. An easement is extinguished when the easement is conveyed to the owner of the servient tenement. For an easement to exist, the ownership of the easement and the servient tenement must be in different persons. (By definition, an easement is the right to use the land of another for a special purpose.) If ownership of the two property interests comes together in one person, the easement is extinguished.

Question 42

A landowner owned a beachfront lot and home in a subdivision occupying several hundred acres near a lake. The recorded subdivision plan grants to each owner in the subdivision an easement to use the private roads therein for personal ingress and egress.

Following seismic activity in the area, the level of the lake dropped substantially, exposing a considerable amount of land between the new shoreline and the old beachfront. It was judicially determined that this “new” land belonged to the county, which put portions of it up for sale. The landowner purchased the land extending from her old property line to the new shoreline, and constructed a boat launching ramp on the new property. She then permitted persons who did not own land in the subdivision to drive through her old property to reach the boat launching ramp on her new property, and thus to utilize the lake, for a small fee. The homeowners’ association brought suit against the landowner, seeking to enjoin her from using or permitting nonresidents of the subdivision from traveling its streets to reach the boat launching ramp.

How should the court rule?

A - For the homeowners, because the scope of the easement granted to the landowner as an owner in the subdivision does not extend to the use that she is making of the new property.

B - For the landowner, because she has an express easement over the streets of the subdivision.

C - For the landowner, because she has an easement by necessity as to the new property over the streets of the subdivision.

D - For the landowner, because she has an implied easement over the streets of the subdivision benefiting the new property since it abuts her old property.

Answer 42

(A) The express easement for the landowner’s old property benefits that property only and cannot be used for the landowner’s expanded access to the new property. An easement is a liberty, privilege, or advantage that one may hold in the lands of another. The holder of an easement has the right to use a tract of land (called the servient tenement) for a special purpose; e.g., laying utility lines, or for ingress and egress.

If the parties to the original creation of the use specifically state the location of the easement, its dimensions, and the special use or limits to such use, the courts will honor this expression of specific intent. Absent specific limitations, it will be assumed that the parties intend that the easement meet both present and future reasonable needs of the dominant tenement. However, a basic change in the nature of the use is not allowed. The landowner’s easement by express grant merely allows her to use the private roads in the subdivision for her personal ingress and egress to and from her beachfront property. The use of the easement for access to a new boat launching ramp for which a fee is charged goes beyond the specific language of the grant (and arguably beyond the reasonable needs of the dominant tenement). Therefore, the homeowners will be able to prevent use of the subdivision streets to reach the boat launching ramp.

Question 43

A landlord entered into a written lease of a bakery for a term of 25 years with a baker. The parties agreed to a right of first refusal if the bakery was offered for sale during the term of the lease. The lease also permitted assignments and subleases on notice to the landlord. Three years later, the baker retired and, after notifying the landlord, transferred the lease to a chocolatier. Twenty-one years later, the landlord entered into a contract with a buyer for the sale of the bakery for $100,000. The landlord had informed the buyer of the lease but had forgotten about the right of first refusal. When the chocolatier learned of the sale to the buyer, she informed both the landlord and the buyer that she wanted to exercise her option and was prepared to purchase the bakery for the contract price. The jurisdiction’s Rule Against Perpetuities is unmodified by statute.

Can the chocolatier enforce the option?

A - Yes, because an option held by a tenant on leased property cannot be separated from the leasehold interest.

B - Yes, because the option touches and concerns the leasehold estate.

C - No, because the transfer to the chocolatier made the option void under the Rule Against Perpetuities.

D - No, because the option was not specifically included when the lease was transferred to the chocolatier.

Answer 43

The chocolatier can enforce the option to purchase because it is a covenant that runs with the land. When a tenant makes a complete transfer of the entire remaining term of his leasehold interest, it constitutes an assignment. The assignee and the landlord are then in privity of estate, and each is liable to the other on all covenants in the lease that run with the land. The covenant runs with the land if the original parties so intend and the covenant “touches and concerns” the leased land, i.e., burdens the landlord and benefits the tenant with respect to their interests in the property.

Here, the transfer of the lease to the chocolatier was an assignment, making all covenants in the lease that run with the land enforceable by the assignee. The right of first refusal burdens the landlord’s power of alienation over the bakery, and there is nothing to indicate that the parties intended the option to be personal to the baker. Hence, the chocolatier can enforce the option and purchase the property.