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Question 1

What do the majority of jurisdictions require in order for an easement to be implied from necessity?

Answer 1

The majority of jurisdictions require strict necessity and say there must be an appreciable expense incurred by the grantor to supply a substitute

Question 2

What must the conveyance of part of the land result in in order for an easement to be implied by necessity?

Answer 2

The conveyance must result in the granted/retained parcels being without access to the outside world. If the person has free access to some part of his land, or access over another parcel of land to reach a road, there’s no necessity for just inconvenience. The easement must be necessary to use the dominant estate

Question 3

If land still has access to a navigable body of water, what is the split in the courts to decide whether or not an easement has been implied from necessity?

Answer 3

– Majority: no necessity

– minority trend: there is necessity if access doesn’t give effective use of the dominant tenement

Question 4

If you now own a cabin that is only accessible by Lake, but you want to use it in the winter, would that involve an implied easement by necessity?

Answer 4

Probably yes

Question 5

How do you determine the location of an easement that has been implied by necessity?

Answer 5

The servient estate gets to make the first decision. If the two parties cannot agree, courts put it at the shortest route considering convenience and suitability. Court considers distance, injury to the owner, practicality, benefit to the dominant parcel, prior conduct, and the intent of the parties

Question 6

If there used to be a foot path on land, but over time you got a car, would you be able to still use an easement implied by necessity for this changed purpose?

Answer 6

Probably yes, because reasonable use and development without unduly burdening the servient tenement is generally OK

Question 7

What is the plaintiff entitled to when it comes to an easement implied by necessity?

Answer 7

A reasonable way, but not a particular one. The dominant tenement can change the route and make it more circuitous

Question 8

What is an easement implied from Plat?

Answer 8

Developers prepare plats/maps to show where each home and Street will be in a subdivision. If a home is adjacent to a street, that gives a legitimate expectation that the street will be used by the public, and thus an implied easement of access over streets on the map.

Question 9

What are the three different rules under an implied easement from plat?

Answer 9

– broad unitary rule: gives a private easement over all parts of all ways on the plat
– intermediate enjoyment rule: gives a private easement over platted ways and is as extensive as necessary to protect the market value of the buyer’s property
– narrow necessary rule: gives private easements over only abutting streets and connecting streets that are necessary to access public roads

Question 10

What is an easement by estoppel?

Answer 10

A parol license or promise of an easement can become irrevocable if reasonable detrimental reliance gives the basis of an estoppel. I.e.: like by mutual contributions of money and land to a shared driveway between two landowners, then suddenly one owner puts up a fence to stop it

Question 11

What is a prescriptive easement?

Answer 11

It is for actions that are taken according to the terms of an intended but imperfectly created servitude. If there was no writing, the easement was not legal, but the intended beneficiary used the property as if he was entitled to it.

Long continued activity can create either ownership by adverse possession or prescriptive easement

Question 12

Once a prescriptive easement is created, how long does it last?

Answer 12

It is enduring and it cannot be revoked by informal acts of the parties.

Question 13

What is the permitted use of a prescriptive easement limited by?

Answer 13

The extent of prior adverse use

Question 14

What are prescriptive easements similar to?

Answer 14

Adverse possession

Question 15

How do you get title through a prescriptive easement?

Answer 15

By the running of the SOL

Question 16

What is the critical component of a prescriptive easement?

Answer 16

Non-recognition of the owner’s authority to permit or prevent the use.

Question 17

How do you stop a prescriptive easement?

Answer 17

You have to actually interrupt the use to stop it, you can’t just voice an objection

Question 18

What are the elements of a prescriptive easement?

Answer 18

– Actual physical use
– open
– notorious
– hostile
– continuous or uninterrupted
– exclusive use

Question 19

What does it mean for the element of a prescriptive easement that requires it to be open?

Answer 19

It must be visible or confined to a well-defined area.

Question 20

What does the element of a prescriptive easement for hostile require?

Answer 20

No permission from the owner

Question 21

What is required under the continuous or uninterrupted element of a prescriptive easement?

Answer 21

It can be intermittent as needed, but it should be continuous or frequently used enough to be normal for the kind of easement that is claimed.

Question 22

What is a negative prescriptive easement?

Answer 22

This is usually impossible because the dominant tenant hasn’t done an activity that wronged the servient. An example would be if the dominant looked out the window over your land for 30 years and now wants to stop you from building because it will interfere with her easement of view. That is not possible because her enjoyment did not interfere with your ownership. She is privileged to look over your land but that doesn’t ripen into a right to stop you from doing something you were privileged to do

Question 23

What is a conservation easement?

Answer 23

A legal agreement between the land owner and a trust or government agency that permanently limits the use of the land to protect its conservation values. The land owner and his successors continue to own, use, possess, and transfer the servient estate, but it is subject to perpetual restrictions of the easement

Question 24

What are examples of things that could be conservation easements?

Answer 24

Imposing limits or obligations to retain or protect natural, scenic, or open-space use, natural resources, air/water quality, historical/architectural, archaeological, or cultural aspects of property

Question 25

What are the affirmative obligations that can be imposed on the servient estate through a conservation easement?

Answer 25

Obligations to do things like remove invasive species, fence the land, exclude others, maintain historic buildings, allow public access or periodic inspections, etc.

Question 26

A conservation easement perpetually restricts the use and development of the land to what?

Answer 26

Things that are consistent with the easement’s stated conservation purpose.

Question 27

Does a member of the public have standing to enforce a conservation easement?

Answer 27

No

Question 28

What are some different conservation purposes that may require a conservation easement?

Answer 28

Preservation of land for outdoor recreation, protection of natural fish or wildlife habitats, preservation of open space or prehistoric land and structures, etc.

Question 29

How do you create an easement?

Answer 29

Done by words of contract or conveyance. Usually must be in writing and signed by the grantor. Language should be clear and unambiguous.

Question 30

What are all of the different kinds of easements?

Answer 30

– Easement appurtenant

• easement in gross
• affirmative easement
• negative easement
• spurious easement
• express easement
• implied easements: from prior use, from necessity, from plat
• easement by estoppel
• prescriptive easement
• conservation easement

Question 31

What is meant by reservation of easement?

Answer 31

When you split the property into two pieces and you keep back one and sell the other, but for less money the buyer agrees to let you use a road across the land to access the highway. This keeps a newly created property right for the grantor

Question 32

If the language of an easement is clear and unambiguous, what happens?

Answer 32

It is given effect

Question 33

If the language of an easement is not clear and is ambiguous, what happens?

Answer 33

The surrounding circumstances are considered and the reasonable intentions and expectations of the parties

Question 34

What are factors to consider in deciding if an easement has been granted or reserved?

Answer 34

The amount of consideration given because if it was substantial it was probably an easement, the prior use of the land because this suggests continuation that is contemplated by the parties, subsequent conduct of the parties after creation because if the land is used in a certain way it implies it was contemplated.