Non-Possessory Estates Flashcards
NPEs - define & 4 categories
• Non-possessory estates usually entitle the holder to use another’s property, but not possess it. The law recognizes several non-possessory estates:
– A. Easements
– B. Licenses
– C. Profits
– D. Covenants/Equitable Servitudes
what is an easement; 2 types
An easement is a non-possessory interest that usually entitles its holder to some use or enjoyment of another’s land (the “servient estate”) for a specific limited purpose
ex) allowing an owner of adjacent land to cross yours, running electric lines or gas pipes
There are two types of easements: negative and affirmative.
negative easements - define & 4 types
Negative Easements: A negative easement entitles the holder of the easement to prevent another landowner from doing something on her own land. Negative easements must be created expressly IN WRITING; there are NO negative easements by oral agreement, implication, necessity, or prescription.
• Even if there is an express written grant, only five types of negative easements are recognized. These are easements in which the servient landowner agrees not to interfere with the dominant landowner’s:
a. Access to light
b. Access to air
c. Lateral and subjacent support
d. Stream water from an artificial flow
e. Access to view (possibly a minority view)
• Negative easements closely resemble restrictive covenants.
affirmative easements - define & 2 types
Affirmative Easements. An affirmative easement entitles the holder to go on to the servient land to do some act. Affirmative easements are far more common than negative easements.
• a. There are two types of Affirmative Easements:
• i. Easement Appurtenant (relevant to/pertinent to to dominant parcel): An easement that benefits a neighboring parcel of land (i.e., the dominant estate - doesn’t have to be next door neighbor!). The law prefers easements appurtenant, so in the event of ambiguity, courts will construe an easement as appurtenant rather than in gross.
»> **look for two parcels
»> example: right to cross the servient land to gain access to the dominant estate
• ii. Easement in Gross. An easement that is personal or commercial in nature that does not directly benefit a neighboring parcel.
»> **look for one parcel
»> examples: right to place a billboard on someone’s land or right to swim in someone’s lake
affirmative easements - transferability (easement appurtenant; easement in gross)
• i. Easement Appurtenant: In an easement appurtenant, the ownership of the easement is tied to the ownership of the dominant estate. Thus, the benefit of an easement appurtenant passes automatically to the successors of the DOMINANT estate regardless of whether it is mentioned in the subsequent conveyance
»> In addition, the burden passes automatically to the successors of the SERVIENT estate, unless the successor is a BFP WITHOUT NOTICE of the easement.
> > > An easement appurtenant CANNOT BE TRANSFERRED INDEPENDENTLY of the dominant estate (such a transfer would simply be ineffective - WOULD NOT TERMINATE the easement!)
> > > however, a transfer to the SERVIENT landowner EXTINGUISHES the easement
• ii. Easement in Gross: Such easements are personal to the easement holder; there is no dominant estate. The common law prohibited transfer of an easement in gross. Under modern law, easements in gross that are commercial in nature (e.g., utility easements) are transferrable.
affirmative easements - creation (by deed of grant/reservation; by implication/quasi-easement)
• i. By Deed of Grant or Reservation: a deed of easement must be in writing and signed by the party to be charged, regardless of cost or (probably) duration (i.e. must satisfy the SOF)
»> **if it fails the writing requirement, it will be demoted to a license (freely revocable and not a property interest)
• ii. By Implication (Quasi-Easement). occurs when:
(1) property is divided (i.e., common ownership at some point in the past),
(2) there was readily apparent use (e.g., path, driveway) prior to the division; AND
(3) the easement is at least reasonably necessary to the enjoyment of one of the parcels.
affirmative easements - creation (by necessity)
• iii. By Necessity. occurs when
(1) property is divided (i.e., common ownership at some point in the past),
(2) a parcel is landlocked because of the division, AND
(3) an easement to cross the servient estate (for access and/or utilities) is at least strictly necessary for enjoyment of the dominant estate.
- unlike a Quasi-Easement, the servient estate need not have been used prior to the transfer
- the owner of the servient estate has the right to locate the easement, as long as the location is reasonably convenient
affirmative easements - creation (by prescription; by estoppel)
• iv. By Prescription: an easement may be acquired by prescription if the easement holder’s use is:
> > > Actual
Open and notorious (i.e., visible)
Hostile (without permission—the majority assumes no permission, i.e. does not need to be contested)
Continuous and uninterrupted (seasonal may suffice)
For the statutory period for prescriptive easements
*** if no SOL given, it will NEVER be less than one year, and will typically be 10-20 years
• **NOTE: unlike for AP, the use NEED NOT BE EXCLUSIVE against the owner or other easement claimants
• (The rules for “disability” and “tacking” are the same
for adverse possession and prescriptive easements.)
• v. By Estoppel: an easement by estoppel may arise if a licensee makes substantial improvements to the right-of-way with the knowledge or preferably consent of the servient landowner; in such case, the servient landowner is estopped from terminating the license.
affirmative easements - duty to repair
- d. The holder of the easement has a duty to repair the easement and has a right to enter the servient estate to make such repairs, even if the deed does not so provide.
- Absent an agreement, the servient landowner has no obligation to repair the easement or to contribute to the costs of such repair. If the easement is being used by the holder (or holders) and the owner of the servient estate, the costs of repair will be apportioned among the parties.
affirmative easements - overuse (rule & 2 types)
• e. The holder of the easement may not overuse the easement (aka a “surcharged easement”). There are two types of overuse:
• 1. any unreasonable burden that was not foreseeable at the time the easement was created
»> if the dominant estate is subdivided, each subdivided lot has a right to use the easement appurtenant, unless the increased burden is unreasonable (e.g., use by 4 subdivided lots may be permitted, but 40 lots are probably excessive)
- use of the easement for property other than the dominant estate
- ***REMEDY: The servient landowner may sue to enjoin such excess use or for damages, but overuse does not give the servient landowner the right to terminate or block the easement
affirmative easements - termination (estoppel; necessity ends)
• i. Estoppel: The holder of the easement orally tells the servient landowner that he no longer intends to use the easement AND the servient landowner reasonably relies on such statements to her detriment (e.g., builds a garage across the driveway or puts up a fence)
• ii. Necessity Ends: If the easement was created solely out of necessity (i.e., no express grant), the easement ends when the necessity ends
»> but watch out! f an easement is granted by deed to deal with a necessity, the easement does not end when the necessity ends (unless the deed so provides).
affirmative easements - termination (destruction of estate; condemnation of estate; written release; abandonment)
• iii. Destruction of the Servient Estate: If the easement is in a structure (e.g., right to use stairs), involuntary destruction of the structure terminates the easement.
• iv. Condemnation of Servient Estate by Government
»> However, the holder of the easement would be entitled to share in the condemnation award. The same rule applies to profits.
- v. Written Release by the easement holder that satisfies the SOF
- vi. Abandonment: Requires a PHYSICAL ACT (e.g., removing railroad tracks) showing the intent of the holder to permanently abandon; mere words or nonuse (even for the statutory period)—without a physical act—are insufficient
affirmative easements - termination (merger; prescription)
• vii. Merger by Complete Unity of Title: servient and dominant estates end up in the same hands; in such event, the easement does not automatically re-start when the land is re-divided
> > > for a merger to occur, the interests MUST BE HELD IN THE SAME FASHION; there would be no merger, for example, where the dominant estate was held in fee simple and the servient estate was acquired as a life estate or tenancy for years
• viii. Prescription: an easement may be obtained by prescription and terminated by prescription or adverse possession (e.g., blocking the easement for the SOL period)
licenses - define; revocability; assignability; 2 examples; automatic revocation
• A license is a privilege to enter another’s land for some specific purpose. It is not a property interest and thus does not have to be in writing.
– It is freely revocable, unless the license holder has detrimentally relied on the license (i.e., easement by estoppel) or has a license coupled with an interest (e.g., a license in a vendee to retrieve personal property, a license in a tenant to recover personal property after termination of a lease without a fixed duration, or a license in a remainderman to inspect for waste).
– As a general rule, licenses are not assignable (under modern law, licenses based on tickets are often assignable).
– 1. Examples of licenses:
• a. tickets to entertainment and sporting events
»> X purchased season tickets for the Chicago Cubs. The Cubs lost the first game of the season, causing X to boo as the Cubs left the field. As a result of his booing, the Cubs informed X that he was no longer allowed in the stadium; the Cubs refunded the entire cost of the season tickets. If X brings suit against the Cubs to force them to let him back into the stadium, X will
»> Lose because he only had a revocable license, which is not a property interest
- b. oral, unenforceable easements
- A license is automatically revoked by (1) the death of the licensor or licensee, (2) conveyance of the land subject to the license, or (3) an attempted assignment by the licensee - i.e. licenses are weak as shit
profits (profits a pendre) - 4 rules
• An easement-like interest that allows its holder to come on to the servient estate to remove natural resources. The rules applicable to easements generally apply to profits.
– But unlike easements, there is a constructional preference for profits in gross (commercial), and not profits appurtenant. There is also a constructional preference for non-exclusive profits.
– Profits are assignable (and divisible) to the extent such assignments do not overly increase the burden on the servient estate (e.g., over burden is more likely to occur in non-exclusive profits).
– A profit holder has an implied easement to enter the servient estate to gain access to the natural resources.
