Fixtures & Easements

Question 1

General Rules of Fixtures

Answer 1

• Fixtures become part of the property and therefore cannot be removed
• whether an item is to be considered a fixture hangs on intent
  
  • did the one doing the installing intend for the item to become a permanent fixture?
• If there is an express agreement between the parties, then the agreement controls

Question 2

Where there is no agreement between the parties as to the fixture, there are four factors relevant to determine intent

Answer 2

1. Degree of attachment
2. General Custom
3. Degree of Harm to premises on removal
   
   • if it can be removed without damage, courts will presume there was no intent to make permanent
4. Trade fixtures
   
   • items used in trade and business are never permanent fixtures

Question 3

If an item of personal property is not a fixture, when may it be removed?

Answer 3

1. Tenant must remove before he vacates at the end of the lease
2. Seller must remove item before closing or else he will lose the chattel

Question 4

An Easement

Answer 4

An easement is a non-possessory interest in land involving the right to use the land

Question 5

2 classifications of easements

Answer 5

1. Easements Appurtenant
   
   • any time an easement benefits the use and enjoyment of a specific parcel of land, it is classified as an easement appurtenant
   • the burdened porperty is referred to as the serviant estate
   • the benefitted property is the dominate estate
2. Easements in Gross
   
   • an easement in gross occurs where there is no dominant estate because there is only one parcel of land involved, which is burdened by the easement, classified as the servient estate

Question 6

Methods of Creation of an Easement

Answer 6

1. Express Easement
2. Implied Easements
3. Easement by Prescription

Question 7

Express Easement

Answer 7

• Express Easement arises from the express grant of an easement to someone else or the express reservation of an easement when the land is sold to another person.
• Must satisfy statute of frauds
  
  • writing signed by holder of servient estate to satisy deed formalities
  • Easements of a year or less do not have to be in writitng

Question 8

Implied Easements arise in two situations

Answer 8

Easements by Implication arise in two situations:

1. Implied easement based on previous use by a common grantor
2. Implied easement based on Absolute right of access rule

Question 9

Implied easement based on previous use by a common grantor

Answer 9

There must be previous use by a common owner and this must satisfy 3 requirements

1. apparent
2. continuous; and
3. reasonably necessary

Question 10

Implied easement based on Absolute right of access rule

Answer 10

Where the property owner is left totally landlocked after giving effect to the conveyance

Question 11

Easment by Prescription

Answer 11

3 requirements to establish:

1. use must be hostile to the true owner (trespass on title)
2. use must be continuous and uninterupted for the specified statutory period
   
   • 20 years at common law
   • seasonal use may satisfy this requirement
3. use is visable and notorious or with the owner’s knowledge

Any grant of permission, even if made orally, is enough to destroy the hostility needed to establish prescriptive easement

Question 12

Transfer of the Easement Appurtenant

Answer 12

Benefit is transferred automatically along with the dominant estate, whether or not the easement is mentioned in the deed or conveyance.

The easement appurtenent cannot be transferred seperately from the dominant estate

Question 13

Transfer of an Easement in Gross

Answer 13

• commercial easements in gross can always be transfered
• personal ones cannot be

Question 14

Transfer of Servient Estate

Answer 14

• Easements are always binging on subsequent holders of the servient estate, even if it is not mentioned in the deed of conveyance, provided the subsequent holder had notice ofeasement
• 3 ways to put on notice
  
  • Actual knowledge or notice
  • Constructive
    
    • document creating the easement is recorded in the direct chain of title
  • Inquiry
    
    • arises from buyer’s physicial inspection of the land; or
    • buyer looking at the public records

Question 15

General Rule for Scope of Use of Easement

Answer 15

The specific terms of the easement control the use

Question 16

Two presumptions where an easement is silent on use:

Answer 16

1. unless specified, an easement is presumed perpetual
2. the use presumed is the reasonable development of the dominant estate.
   
   • reasonable development is that which most likely would have been contemplated by the parties at the time the easement was granted
   • An easement is only to benefit he dominant estate

Question 17

Remedy for Excessive Use of an Easement

Answer 17

Enjoin the excessive use, but do not terminate the easement

Question 18

Repair of the Easement

Answer 18

• The holder of the beneift of the easement (dominant estate) is responsible for making the necessary repairs to the easement
• The holder of the benefit can always go onto the servient estate to repair the easement, even if the terms of the easement do not provide for that right
• The holder of the easement must make reasonable restoration to the serveint estate after making repairs to the easement
• Unless the easement says otherwise, the serveint estate holder has no duty to repair the easement

Question 19

Ways to Terminate an Easement

Answer 19

1. Unity of Ownership (Doctrine of Merger)
2. Deed of Release
3. Abandonment
4. Termination by Estoppel
5. Termination by Prescription
6. Termination of Easements Created by Necessity

Question 20

Unity of Ownership (Doctrine of Merger) of the Easement

Answer 20

Whenever title to the dominant and servient estate are held by the same owner, the easement is terminated

Question 21

Deed of Release of Easement

Answer 21

To be a valid release, it must be signed in writing (to satisfy the statute of frauds) and comply with the deed formalities

Question 22

Abandonment of Easement

Answer 22

• The intent to abandon must be manifested by the holder of the dominant estate taking some physical action that would show his intent to abandon.
• Mere non-use does not constitute abandonment

Question 23

Termination of Easements by Estoppel

Answer 23

2 requirements

1. A representation of relinquishment of the easement by the holder of the dominant estate; and
2. The holder of the servient estate must make a change in his position in reliance on the representation

Question 24

Termination of Easements by Prescription

Answer 24

1. The owner of the servient estate must stop of the use of the easement; and
2. must keeped it stopped for the period of time required by the applicable statute of limitations

Question 25

Termination of Easements Created by Necessity

Answer 25

Once the necessity for the implied easement ceases to exist, then the implied easement will automatically terminate

Question 26

Easements for View and Sulight

Answer 26

No implied easements for view or sunlight on the exam

Question 27

Whats a License?

Answer 27

A license is a contract right involving a limited privilage to use land in the possession of the liscensor.

Question 28

When can a license be terminated?

Answer 28

• A license can always be revoked at the will of the licensor
• However, if the revokation is wrongful, the liscensor may have to pay for contract damages

Question 29

Tickets

Answer 29

• All tickets are licenses
• No property right in a ticket, but the holder of the ticket may sue for breach of contract

Question 30

Irrevocable Licenses - 2 rules

Answer 30

1. If an easement is attempted to be created, but fails because it does not meet the statute of frauds, then a license is created
2. If money is spent on the property in furtherance of the oral license, then that license becomes irrevocable and can be enforced under principles of estoppel

Question 31

Profits

Answer 31

• A profit gives a right to go onto the land of another and take away a natural recourse
• Along with the grant of a profit goes the implied easement to go onto the land and extract the natural recourse