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Question 1

When considering the element of the creation and validity of an easement, what do you need to ask about?

Answer 1

If there is a writing that satisfies the statute of frauds, and whether the purpose was stated with definition and limits on use

Question 2

What are the five different kinds of easements?

Answer 2

Express, implied, necessity, prescription, and public use

Question 3

What should be considered in the element of “scope” for easements?

Answer 3

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.

Question 4

What are some factors that should be included in the scope element of an easement?

Answer 4

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.

Question 5

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?

Answer 5

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

Question 6

What is required for particularity as an element of an easement?

Answer 6

It doesn’t have to be a definite statement of the width, dimensions, or exact location.

Question 7

What is surcharging?

Answer 7

Overuse beyond reasonable bounds. This allows for termination, a suit to stop the surcharging, or damages

Question 8

Who has a duty of maintenance over the easement?

Answer 8

The dominant estate has a duty to reasonably maintain, and can make improvements that do not unreasonably increase the burden on the servient estate

Question 9

When can changes be made to an easement?

Answer 9

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.

Question 10

If an easement owner uses an easement for purposes that are different from or exceeding the purpose, what happens?

Answer 10

That is considered a trespass

Question 11

Normal development of an easement is presumed to be agreed to, but not what kind of development?

Answer 11

Development that would unreasonably burden the land even if it comes from normal growth. I.e.: area changes from farming to residential

Question 12

Can an easement’s use change over time to accommodate technological development?

Answer 12

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

Question 13

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?

Answer 13

Yes

Question 14

The grantor has the power first to fix a reasonable and convenient location for an easement, but if he doesn’t, then what?

Answer 14

The grantee can do it

Question 15

If the parties establish an easement by use and then acquiesce to it, is the location then fixed?

Answer 15

Yes

Question 16

If an easement’s location in a deed is vague, who do the courts favor?

Answer 16

Deeds are construed in favour of the grantee and against the grantor

Question 17

What does an easement give to the owner?

Answer 17

Limited use and enjoyment of land, protection against third-party interference, etc.

Question 18

What is dedication?

Answer 18

When you set aside privately owned land for use by the public.

Question 19

What is required in order for a dedication to happen?

Answer 19

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.

Question 20

What is the difference in a common law dedication between an express and an implied intent to make the dedication?

Answer 20

– 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

Question 21

What are the seven major types of easements?

Answer 21

– Easement appurtenant
– Easement in gross
– affirmative easement
– negative easement
– spurious easement
– express easement
– implied easement

Question 22

What is an easement appurtenant?

Answer 22

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.

Question 23

What is an example of an easement appurtenant?

Answer 23

An access road for a landlocked tract of land. “But for“ the easement, there would be no way to exit

Question 24

Does an easement appurtenant run with the land?

Answer 24

Yes

Question 25

What are some examples of easement appurtenants?

Answer 25

Walkways, driveways, utility lines across the land, a right to flood downstream property, etc.

Question 26

In an easement appurtenant, the detriment to the servient estate is offset by what?

Answer 26

The benefit to the dominant estate

Question 27

What is a profit appurtenant?

Answer 27

Right to substances from the soil of land A to be used on land B, or timber, or whatever else

Question 28

What is the important thing in creating an easement appurtenant?

Answer 28

It must be expressly designated as appurtenant to the dominant estate. If it is not, but the receiver owns nearby land that benefits from it, it is presumed to be appurtenant because most easements are meant to be appurtenant and pass with the land, so it protects the grantee from accidentally not including a separate grant of easement

Question 29

Is it possible for an owner to use an appurtenant easement to service land that was not part of the dominant estate at the time of the creation?

Answer 29

No, that creates a trespass

Question 30

Is it possible for an easement owner to tell his friend that he can also use the easement?

Answer 30

No, the easement can only be used by the holder of the dominant estate

Question 31

What is the difference between an easement appurtenant and an easement in gross?

Answer 31

– Easement appurtenant: benefits a parcel of land and attaches to it
– easement in gross: benefits the holder of the easement, not the land

Question 32

If land is separated into lots after an easement is granted, does that prevent it from serving individual parties?

Answer 32

No, but if the easement will be surcharged/used way beyond what was reasonably anticipated, excess use is not allowed

Question 33

What is an easement in gross?

Answer 33

The easement is independent of ownership in a parcel and it is for the benefit of a party or individual. It doesn’t give rights to another tract of land, and it is not connected with a dominant estate. There is no dominant estate, there is just a dominant tenant.

This does not benefit property or an estate, it benefits the owner personally and exists independently of the other estate

Question 34

What is an example of an easement in gross?

Answer 34

A pipeline or a utility easement, logging easement, railroad, mining, street easement, water lines, sewer lines, the right to swim in a pond on property to someone that is not a neighbor, etc.

Question 35

Are easements in gross often time-limited?

Answer 35

Yes. I.e.: go on the property and cut timber

Question 36

Does an easement in gross run with the land?

Answer 36

No because there’s no dominant parcel, so it cannot pass with title to the land. This is not inheritable, so it vests only in the person it is granted to

Question 37

Is it possible to acquire an easement in gross by prescription?

Answer 37

Yes

Question 38

What are the triggers to know whether it is an easement appurtenant or an easement in gross?

Answer 38

Look at the surrounding circumstances.
– Appurtenant: uses language like “inheritance“
– gross: holder has no land that is being served or benefitted from it. Profits are usually in gross

Question 39

If you own adjoining land does that always mean that the easement is appurtenant?

Answer 39

No, you need language saying that it is useable only in connection with the other land.

Question 40

Is an easement in gross transferable?

Answer 40

Not usually, but an exception applies when the easement is commercial in character (If it primarily provides an economic benefit and is not personal in nature)