Midterm Rule Statements Flashcards
Private Nuisance
Substantial and unreasonable inference with the plaintiff’s use and enjoyment of their land. Severity of inflicted injury must outweigh the utility of the defendant’s conduct. Courts use a reasonable person standard and weigh utility v risk
Public Nuisance
An activity by the defendant in the use of his land that causes interference with the health, safety, or well being of the public at large
Easement
Entitles its holder to some form of use and enjoyment of another’s land
Easement Appurtenant
Is a type of easement that entitles the holder of the easement (dominant tenenment) the right to use the land of another (servient tenement) for a specific purpose that benefits the dominant tenement. Often for ingress and egress. Requires a valid writing. A properly recorded easement appurtenant passes with the land and bind successive owners. It is transferred in the deed even if it is not specified in the deed. This type of easement requires two estates
Does an Easement Appurtenant need to be in writing?
Yes, if it is not in writing then it does not exist.
When does an easement appurtenant not run with the land?
if the easement is not recorded. Needs to have notice, either recorded or spoken notice. If there is no notice there is no easement even if there is a writing
If an easement appurtenant is not in the deed does it pass with the land?
Yes, as long as it is recorded it passes with the land
If you see in the question that the deed was recorded do you need to write to it?
YES
Easement in gross
Entitles the holder only a personal or commercial gain that is not related to their use and enjoyment of their own land. This type of easement only involves one parcel, a servient tenement. This usually allows the easement holder access to the land for particular purpose, such as electrical or cable wires, running underground pipes. Easement in gross is personal to the holder and is not connected to a dominant estate. Does not run with the land and are unassignable and non-inheritable, unless for commercial purposes.
Other names for Implied Easements
“easement implied from existing use”; or
“Implied Grant”; or “implied reservation”
Implied Easements
Created based on prior use of the land. Two conditions must be met for the courts to find that an easement is applied: (1) the previous use had been apparent (2) the parties expected that the use would survive division because it is reasonably necessary to the dominant land’s use and enjoyment
Implied easement example
L owns Eastacre and Westacre, Eastacre is connected to a main sewer drain located on westacre. If L sells westacre to A and forgets to include a reference to Anthony’s use of the main sewer drain located on her property, the courts may imply an easement on A’s behalf if both of the above conditions are met
Merger Doctrine
When the dominant estate and the servient estate are both acquired by the same owner, the easement is extinguished because there are no longer two estates. The estates merge and the easement dies. Easement is not revived if the parcel is again divided ( Watch for test question that merges the property but then is sold again. Can require a new type of easement)
Easement by necessity
Arises when a single parcel is divided, and one parcel has no ingress and egress, or without an easement would not have access to water, sewer, etc. Courts will award an easement of “right of way” by necessity if grantor conveys a landlocked portion of his land with the only way out requiring grantee to use Grantor’s remaining land.
Easement by necessity always begins with a singel parcel and party seeking easement must demonstrate a strict necessity
when do Easements by necessity end?
When the necessity ends
Easements by prescriptions
Occurs by adverse possession. The only element of AP not requires Is exclusive use. Can be used by both AP and the owner.
Even if the owner is using the property, the adverse possession clock is still ticking
Owner can demand that the AP not use their property and they can still do it and the adverse possession clock is still ticking
Scope of easement
Scope of easement may be expanded to allow for normal development, but such development may not interfere with or damage the servient estate
Exceeding the scope of an easement can result in the loss of the easement, but this must be litigated
Scope of easement example
A has easement across B’s property for ingress and egress. A builds cabin on their property. Overtime A starts renting out their cabin for Air BnB. Over time A builds 2 more cabins. Now there is 3 cabins on A’s property. B cannot do anything about it. Then A builds a hotel, and there are many people coming and going and being on the property at all times. This may exceed the scope of the easement. B will have to go to court and the judge must decide if the scope of the easement was exceeded
Maintenance of easement
Generally the dominant estate is required to maintain easement and not burden the servient estate
Example of maintenance of easement
Dominant estate’s drive way needs to be repaved, and the driveway is apart of an easement on the servient property. Dominant must maintain and repair the driveway themselves, and not have servient help with repair or maintenance
How does maintenance of an easement apply to easement in gross where there is only a servient estate?
Power company is responsible for powerlines. the maintenance of the powerlines and erection of the powerlines
What are the ways to terminate an easement
By : release, expiration, merger, estoppel, amd abandonment
Easement Termination by release
Easement owner agrees to release the servient estate. needs a writing, SOF.
Easement Termination of by expiration
Easement ends upon an agreed date or event. Does not need to be in writing because the terms are in the original easement
