Land Use Disputes

Question 1

What is required for an express easement?

Answer 1

Affirmatively created by parties in a writing that satisfies SoF

Question 2

What is required for an easement by necessity?

Answer 2

Created when property is useless without benefit of easement across adjacent property
The dominant and servient estates must be under common ownership and the necessity must arise when the estate is severed

Question 3

What is required for an easement by implication?

Answer 3

If easement is previously used on servient estate by the earlier owner, a court will imply intent for easement to continue if prior use was continuous, apparent, and reasonably necessary to dominant estate’s use/enjoyment
The estates must once have been under common ownership and a quasi-easement existed at severence

Question 4

What is required for an easement by prescription?

Answer 4

(Like adverse possession for easements)

i) open and notorious; ii) hostile; iii) continuous; iv) for statutory period of time

Question 5

What is required for an easement by estoppel?

Answer 5

Good faith, reasonable, detrimental reliance through permission by servient estate holder, issued to prevent unjust enrichment

Question 6

How is an easement appurtenant transferred?

Answer 6

The benefit is transferred automatically with the servient estate

Question 7

How can an easement be terminated?

Answer 7

1. Release - by writing that satisfies SoF
2. Merger - the easement merges into title when owner of easement acquires the underlying estate
3. Severance - severed by attempt to convey appurtenant easement separate from land it benefits
4. Abandonment - owners must affirmatively act to show clear intent to abandon their right

Question 8

What is a profit a prendre (profit)?

Answer 8

A profit entitles the holder to enter servient land and take from it the soil or some substance of the soil such as mineral, timber, or oil

Question 9

What is required for a valid covenant?

Answer 9

1. Writing - must comply with SoF unless implied reciprocal servitude
2. Intent - rights/duties to run with land through explicit language or implied from totality of circumstances
3. Touch and concern - benefit or burden must affect promisee/promisor as owners of land
4. Notice (burden only) - must be constructive or actual
5. Privity - horizontal privity (burden only) when estate and covenant in same instrument; vertical privity when covenant based on mutual/successive interest in land is burdened/benefited by covenant
   [Unlike equitable servitude, a party can get money damages for breach of covenant]

Question 10

What is required for an equitable servitude?

Answer 10

1. Intent for restriction to be enforceable by successors-in-interest
2. Notice
3. Touch and concern
   (Privity not required)
   [Unlike covenant, a party can only get injunctive relief for breach of equitable servitude]

Question 11

What is required for an implied reciprocal servitude?

Answer 11

1. Intent to create servitude on all plots (common scheme)
2. Negative sevitude
3. Notice