II. easement Flashcards
general
An easement is a non-possessory interest in land involving a right of use.
Two types:
- Easement appurtenant – When the easement directly benefits the use and enjoyment of a specific piece of land
- Easement in gross – The easement does not benefit land. There is only a servant estate, no dominant estate. Classic examples are utility easements (e.g., power lines, railroad tracks).
A. CREATION OF EASEMENTS
- Express Easements
An easement is interest in land and therefore must comply with SOF and formalities of deed (if recorded will be record notice to future owners)
2, implied easement
by prior use exists if commonly owned lad is severed, during time of common ownership there was a use by the common owner, and the previous se is apparent and continues, and its use is reasonable necessary
3, implied easement by necessity
An implied easement by necessity exists when property is landlocked. To create the easement there must have been common ownership of a land that was severed, and at time of severance the dominant estate became landlocked and there is restrict necessity for access to the public road
The owner of the servant estate can choose the location of the easement so long as the location is a reasonable one.
- Easements by prescription (EBP) – arise like title by adverse possession but are only use, not possession.
There must be actual use of the land of another and that use must be: - visible and notorious so that the landowner could discover the use; cannot be hidden or not discoverable.
- adverse or without the permission of the owner.
Watch Out! Any grant of permission by the owner, even oral, will destroy the hostility and thus no EBP. - continuous and uninterrupted.
Seasonal use can be OK if appropriate under the circumstances. - All of these elements must be met for the prescripted period
MBE: 20 yrs
TX: 10 yrs
B . TRANSFER OF EASEMENTS
1. Transferring the Benefit of the easement
If the easement is appurtenant, the benefit goes automatically along with the dominant estate, whether it is mentioned or not in the conveyance, and can not be transferred separately from the dominant estate.
If the easement is in gross, then benefits of easements in gross that are commercial can always be transferred, but benefits of easements in gross that are personal cannot be transferred.
TEXAS Only: No easement in gross can be transferred unless the language of the easement says so. The one exception is the conservation easement because the language of the statute creating such easements allows for transfers.
- Transferring the Burden of the easement
Easements are always binding on subsequent holders of servient estates, even if the easement is not in their deeds, providing the subsequent holder had notice of the easement.
C. USE OF EASEMENTS
- Express Easements: The terms of the easement control on
questions of use. - Easements Created without a writing: If an easement is created without an express agreement then the use or necessity that established the easement will define its use once created.
- If an easement is silent or was created without a writing there are two presumptions:
a. It is presumed that the easement is perpetual
b. The use presumed is that of reasonable development the dominant estate (the kind of use that would have been reasonably contemplated by the parties when the easement was created).
An easement can be used to benefit only the dominant estate, not other property. Use to benefit other property is excessive use; remedy is to enjoin that use (not terminate easement).
D. REPAIR OF EASEMENTS
Holder of easement must keep the easement in repair and can always go on the servient estate to repair the easement, even if the grant of the easement does not specifically provide the right to enter and repair.
Holder of easement must make reasonable restoration of servient estate after repairs.
Holder of easement is obligated to make necessary repairs; holder of servient estate has no obligation of repair (unless easement says otherwise).
E. TERMINATION OF EASEMENTS
An easement can always terminate by its own terms in the agreement. However, there are six possible situations where an easement ends for reasons outside the terms of the easement:
1, unity of ownership or merger
Whenever both dominant and servient estates come together in the same owner, the easement is terminated.
no revive under this one
- A valid release that complies with the SOF and all deed formalities terminates an easement.
- abandonment - the intent to abandon must be manifested by taking some physical act on the property itself that would show intent
Remember, mere non-use, no matter how long it lasts, is not abandonment. - termination by estoppel
Two elements for termination by estoppel:
There must be a representation of relinquishment by the holder of the dominant estate; and change of position in reliance by the holder of the servient estate. - Termination by prescription
Owner of servient estate must stop the use of the easement and keep it stop for the statutory period. - End of necessarily – Once the necessity that created an easement by necessity ceases to exist, so does the easement.
* no implied easement for light and air
Irrevocable License – License plus money spent on property furthering the license.
Two rules:
- Anytime an easement is attempted but fails due to the SOF, there is a license.
- However, 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.
HYPO: Madonna granted Guy an “oral easement.” Later Guy went out on Madonna’s land, cleared up the weed-strewn path and installed an expensive and tasteful flagstone walkway leading down to the beach.
Guy has a license and it has become irrevocable which has now created a property interest that can be enforced.
In some jurisdictions (Texas included) the irrevocable license is called an easement by estoppel.
