Pg 31

Question 1

What is an affirmative easement?

Answer 1

When the holder can go on the land and make specific uses of it. Ie: utility company can have an affirmative easement to lay pipes or wires

Question 2

What is the duty of the owner of the land that gives an affirmative easement to someone?

Answer 2

Just to refrain from interfering with the other person’s right of entry

Question 3

What type of easement is this? If the land owner promises his neighbour that the neighbour can enter his garden to smell his flowers?

Answer 3

That is an affirmative easement

Question 4

What is a negative easement?

Answer 4

This burdens the grantor’s land and allows the holder to require the owner of the burdened land to do or not to do certain things he normally would be allowed to do. This is the right to restrict the use of someone else’s estate, but not to do anything on their land

Question 5

What is an example of a negative easement?

Answer 5

To pay $5000 for an easement that the neighbour will not build anything that blocks your light or air.

Question 6

What is the duty of the land owner of a negative easement?

Answer 6

There is no affirmative duty to act, they just have a duty to refrain from interfering with the easement

Question 7

What is a spurious easement?

Answer 7

When the servient tenant agrees to perform an affirmative obligation.

Question 8

What is an example of a spurious easement?

Answer 8

If the servient tenant agrees to plant and maintain a tree for the dominant tenant on the servient tenant’s property.

Question 9

Why is a spurious easement not technically an easement?

Answer 9

Because courts do not let private parties create novel interests in land.

These are not considered to be negative easements because those only let you restrain the use of land, not compel use, and they are not affirmative because the dominant tenant cannot enter and do it himself

Question 10

What is an express easement?

Answer 10

One that is created in writing, signed, and delivered

Question 11

What is an implied easement or an easement by implication?

Answer 11

This is created by operation of law when the parties intended to create an easement, but didn’t include it in a written agreement. It’s only created if an express easement could have been created.

Question 12

What are the factors that should be considered when deciding if an implied easement is present?

Answer 12

Terms of conveyance, consideration paid, claim made against simultaneous conveyee, extent of necessity, reciprocal benefits, prior use and subsequent actions of parties, extent prior uses known to the parties, result that best meets reasonable expectations of everyone and is fair to all, ability of the parties to act to avoid confusion, public policy, size/shape/location of the land, if the claimant is conveyor or conveyee

Question 13

What are the elements of an implied easement?

Answer 13

– Common ownership of the dominant and servient estates
– reasonable necessity at severance
– apparent prior use/quasi-easement
– The parties’ intent must be clearly demonstrated by the terms of the grant

Question 14

When is necessity measured for an implied easement?

Answer 14

At the moment the parcels are severed

Question 15

If the necessity ends, does that also terminate the easement under an implied easement?

Answer 15

No

Question 16

What are the three different kinds of implied easements?

Answer 16

– Implied easement from prior use/quasi-easement
– easement implied from necessity
– easement implied from plat

Question 17

Are courts more inclined to terminate express or implied easements?

Answer 17

Implied

Question 18

What is involved in an implied easement from prior use?

Answer 18

This is a legal fiction. The grantor owned both parcels before conveyance, so courts say that a quasi-easement preexisted over that person’s own land. This is use that would’ve been an easement if the dominant and servient properties had been owned separately

Question 19

What is an example of an implied easement from prior use?

Answer 19

Owning adjoining lots, and you build a sewer line from one lot under the rest of the lots and you use it for five years. Lot one is the quasi-dominant estate, and the others are the quasi-servient estates. When the quasi-dominant estate is conveyed, the grantee can claim an implied easement.

Question 20

How do you determine the originally permitted uses under an implied easement from prior use?

Answer 20

Look at what was originally allowed before the two parcels were severed

Question 21

What is the focus of an implied easement from prior use?

Answer 21

The intention of the parties. There is no easement if the evidence shows no intent

Question 22

If the previous owner used part of his land for hiking, and then he sells that part, does that create an implied easement from prior use?

Answer 22

No, there is no implied easement for pleasure or recreation that is not necessary for the enjoyment of the dominant estate

Question 23

What are the elements of an implied easement from prior use?

Answer 23

– conveyance
– of a physical part of the grantor’s land
– before conveyance, use of the land could’ve been an easement appurtenant to one and servient on the other
– severance created the need for an easement
– prior usage is apparent

Question 24

What is the difference between a grant and a reservation?

Answer 24

A grant gives land, and a reservation saves some of the land for yourself

Question 25

What is necessary in order for an implied easement from prior use to exist?

Answer 25

The same person must have originally owned the dominant and servient estates

Question 26

What does it mean for an implied easement from prior use that the severance created the need for an easement?

Answer 26

The usage is either strictly necessary or reasonably necessary to use the part of the land it is appurtenant to

Question 27

If land was divided and there was a house on the new part that you could build a new driveway to from a different street, but it would be expensive, could that create an implied easement from prior use?

Answer 27

Courts are split on this:
– strictly necessary: No, because there is access by other means
- reasonably necessary/convenient: yes because of the cost to build a new one (if the dominant tenement would be put to appreciable expense to provide a substitute for the easement, that is enough.)

Question 28

What does it mean for an implied easement from prior use that the prior usage must be apparent?

Answer 28

It must be visible by casual observation or uses must be discoverable by reasonable inspection, and continuous. It cannot be temporary or casual.

Question 29

How are underground uses for things like a sewer or utility lines considered to be apparent for an implied easement from prior use?

Answer 29

They are apparent because they are discoverable by inspection of utility connections that are visible or apparent and reasonably discoverable.

Question 30

Is intermittent use considered to be continuous enough for prior usage to be apparent for an implied easement from prior use?

Answer 30

Yes

Question 31

If you sometimes drive on a certain property to get to your house, but there is no driveway or indication of this use, does that create an implied easement from prior use?

Answer 31

No, if there is no evidence, the easement is not implied

Question 32

What is the scope of the prior usage for an implied easement from prior use?

Answer 32

The extent of the prior use, and additional use from foreseeable changes in the dominant estate are allowed if there’s no unreasonable extra burden on the servient estate. Normal developments to the premises are allowed

Question 33

What is involved in an easement that is implied from necessity?

Answer 33

The easement must be necessary for the reasonable use and enjoyment of the dominant parcel. This occurs when a parcel of land gets subdivided so that one or more lots lack access to things like a public road. In that case it is presumed that the seller intended to create an access easement. This does not require pre-existing use. This allows for sufficient access to make effective use of the land.

Question 34

What is the example of an easement implied from necessity?

Answer 34

Common hallways and stairs on leased apartments would be easements implied from necessity

Question 35

If the necessity later ends, such as an alternate access route opens up, does the easement implied for necessity also end?

Answer 35

Yes

Question 36

When does an easement implied from necessity end?

Answer 36

When the necessity ends. It only lasts as long as the necessity lasts

Question 37

Every implied easement is what?

Answer 37

Appurtenant so it passes with the grant of the dominant estate

Question 38

When must the necessity exist in order for an easement implied from necessity be created?

Answer 38

At the moment of severance. Any later necessity has no effect

Question 39

What is an example of an easement implied from necessity?

Answer 39

You own a peninsula and you convey the tip that is surrounded by water on three sides to someone else.
- under strict necessity: no easement is implied by necessity because the person has access to his land by water
– under reasonable necessity: you need regular access, and that is enough to justify an implied easement

Question 40

What is the situation to watch out for when something looks like it is an easement implied from necessity?

Answer 40

If an easement is express, but it looks like it is implied from necessity because there’s no other option, but a viable alternate becomes available, that doesn’t terminate the easement because it was never an easement by necessity. It was an express easement

Question 41

What are the elements of an easement implied by necessity?

Answer 41

- conveyance
– common ownership
– quasi-easement
– reasonable or strict necessity
– after severance, necessary to pass over one property to reach a public street or road from another

Question 42

What is included under the common ownership element of an easement implied from necessity?

Answer 42

The dominant and servient estates had to have been at one time owned by the same person