Pg 30 Flashcards
When considering the element of the creation and validity of an easement, what do you need to ask about?
If there is a writing that satisfies the statute of frauds, and whether the purpose was stated with definition and limits on use
What are the five different kinds of easements?
Express, implied, necessity, prescription, and public use
What should be considered in the element of “scope” for easements?
What can be done with the easement? If it is created expressly with specific language, that is strictly enforced.
– This is determined by the words of the deed, or the events that create it such as for prescription or implication.
What are some factors that should be included in the scope element of an easement?
Length, width, location, types of uses that are allowed, anticipated frequency or intensity of the uses, if it can be relocated by one party, if the holder can use it to benefit property other than the original dominant estate, maintenance and repair rights/obligations of the parties, others’ use of the easement, parties’ intent, etc.
If A has lakefront property and grants B a right of way to the lake, and B uses A’s boat launch, how does the court figure out what was intended?
It looks at the reasonable and convenient use of the easement. If A opposes that use, A must prove that it is unreasonable or unintended
What is required for particularity as an element of an easement?
It doesn’t have to be a definite statement of the width, dimensions, or exact location.
What is surcharging?
Overuse beyond reasonable bounds. This allows for termination, a suit to stop the surcharging, or damages
Who has a duty of maintenance over the easement?
The dominant estate has a duty to reasonably maintain, and can make improvements that do not unreasonably increase the burden on the servient estate
When can changes be made to an easement?
The owner of the servient estate can make reasonable changes in the location or dimensions of the easement at his own expense to allow normal use and development of it, but only if it doesn’t significantly lessen utility, increase burdens on the owner, or frustrate the purpose it was created for, unless expressly prohibited.
Parties must have anticipated the change would happen when the easement was created and agreed in advance to changes. If the creating instrument doesn’t limit use, it can be used for any reasonable purpose.
If an easement owner uses an easement for purposes that are different from or exceeding the purpose, what happens?
That is considered a trespass
Normal development of an easement is presumed to be agreed to, but not what kind of development?
Development that would unreasonably burden the land even if it comes from normal growth. I.e.: area changes from farming to residential
Can an easement’s use change over time to accommodate technological development?
Yes if the new uses from technological advances change the manner, frequency, or intensity of the easement’s use, that is OK as long as the changes are still representative of the purpose that the easement was created for.
It is assumed that parties contemplated normal increase in frequency or intensity of use over the years due to normal development of the dominant estate, so that is allowed if there’s not an unreasonable extra burden on the servient estate
If X lets Y put a sewer line under his property in exchange for using it himself, and then X sells the land to three people who want to connect to the sewer, which has the capacity to serve them all, would that be considered a normal and foreseeable change in the use of the easement and thus allowed?
Yes
The grantor has the power first to fix a reasonable and convenient location for an easement, but if he doesn’t, then what?
The grantee can do it
If the parties establish an easement by use and then acquiesce to it, is the location then fixed?
Yes
If an easement’s location in a deed is vague, who do the courts favor?
Deeds are construed in favour of the grantee and against the grantor
What does an easement give to the owner?
Limited use and enjoyment of land, protection against third-party interference, etc.
What is dedication?
When you set aside privately owned land for use by the public.
What is required in order for a dedication to happen?
There must be an unequivocal act showing the owner’s intent to dedicate the property, plus acceptance from the public which can be inferred if the government maintains or repairs the property.
What is the difference in a common law dedication between an express and an implied intent to make the dedication?
– Express: express manifestation of intent
– implied: constructed from acts or conduct showing an offer and intent based on estoppel and often inferred from the public’s adverse use of the property and the owner’s acquiescence
What are the seven major types of easements?
– Easement appurtenant – Easement in gross – affirmative easement – negative easement – spurious easement – express easement – implied easement
What is an easement appurtenant?
One parcel is the dominant tenement that uses the other parcel fundamentally connected with it and has no existence independent of the dominant one, even if the two parcels are not adjacent. The two cannot be separated, and the servient one exists to benefit the dominant estate. A servient estate cannot be conveyed without simultaneously transferring the dominant estate.
What is an example of an easement appurtenant?
An access road for a landlocked tract of land. “But for“ the easement, there would be no way to exit
Does an easement appurtenant run with the land?
Yes
