Pg 33

Question 1

If an easement does not specify the dimensions and location, what happens?

Answer 1

It extends over only as much area as is reasonably necessary for the purpose of the easement.

Question 2

What is the majority position when the location of an easement is fixed regarding movement of the easement?

Answer 2

It cannot be moved without the consent of both estates

Question 3

If the parties do not adequately establish the location and width of an easement, what happens?

Answer 3

The courts will establish it by finding a convenient and reasonable location

Question 4

Once an easement’s location is fixed, can either party unilaterally relocate it?

Answer 4

• majority: no
  – minority: the servient estate can relocate if it gives the dominant estate benefits substantially similar to the original and has no adverse effect

** Essay pts: for speaking about split of authority

Question 5

If there is no provision that deals with the maintenance and repair of an easement, what happens?

Answer 5

The easement owner has a duty to make repairs and not to interfere with the servient owner’s use and enjoyment, and can make improvements if they do not unreasonably increase the burden on the survient estate. The survient estate has no obligation regarding maintenance and repair

Question 6

What are the factors to determine whether a fee simple title or an easement is being conveyed?

Answer 6

– the amount of consideration
– particularity of description of the property [easements do not need definite statements of width/dimensions or exact location, but fee title needs this]
– extent of limitation on use of the property
– type of interest that best serves the purpose of the parties
– particularities of wording in conveyance documents
– who the property was assessed to/paid taxes
– how parties to the conveyance or their heirs or assignees have treated the property

Question 7

If you have an easement of ingress/egress across a servient estate that currently serves a single house, then you subdivide the lot into 30 lots and want to continue using the easement for all 30, is that change in the use of the easement allowed?

Answer 7

Only if it is a reasonable burden. You can make reasonable use of an easement if it doesn’t put an unreasonable burden on the servient estate

** Essay: argue both ways on this issue for bonus points. “If it is an unreasonable burden, you can’t use it, if it isn’t reasonable, you can.“

Question 8

Is it possible to add new lots to serve an existing easement that are not part of the dominant estate?

Answer 8

You cannot extend an easement to service property that is not the dominant estate.

Question 9

If the terms of an easement are explicit, is it possible to deviate from them?

Answer 9

Not without agreement from both parties. I.e.: 10 feet is 10 feet, it cannot be widened

Question 10

If there is no explicit language regarding the scope of an easement, what are the two approaches?

Answer 10

– Factor approach: considers the circumstances of the original grant, the amount of consideration paid for it, prior and subsequent uses, etc.
– rule of reason: only reasonable rights and burdens are allowed. Courts attempt to do what the parties would have if they considered the matter and acted reasonably.

Question 11

If a defendant has a right of way across your property, and the easement does not state a mode of transportation, originally when it was made the defendant used to ride a horse across your property, but times have changed and now he wants to drive a car, would this be allowed under the factor approach and the rule of reason approach?

Answer 11

– factor approach: asks if the parties have cars at the time, if the road was paved, how much was paid for the easement, if cars were ever driven on the road, etc.
– rule of reason: decides if driving is a reasonable activity for the defendant and if it unreasonably burdens the servient estate

Question 12

How do you determine the scope of use for an implied easement?

Answer 12

Look at the circumstances

Question 13

How do you determine the scope of use for a prescriptive easement?

Answer 13

Consider the previous use to see if the servient tenant would have acquiesced to the new use. I.e.: if someone walks across your property every day for 25 years and now wants to drive, probably you would’ve stopped her from driving a long time ago

Question 14

What are the rights of the dominant tenant regarding an easement?

Answer 14

They have the right to use the easement, but not to possess it, so they cannot sue to eject others that are using it, they can only bring suit for unreasonable interference with the easement

Question 15

What are the servient tenant’s rights regarding an easement?

Answer 15

By granting use to the dominant tenant, the servient does not lose the right to use the property the same way if it doesn’t unreasonably interfere with the dominant tenant’s use

Question 16

What are the rights of third parties regarding an easement?

Answer 16

The servient tenant can let others use the easement in similar ways that do not interfere with the dominant tenant’s use

Question 17

What is the rule about succession to an appurtenant easement regarding the dominant estate?

Answer 17

It is presumed to be transferred with the dominant estate. If you succeed to possession, you also get the easement because it runs with the land even if the deed does not mention it, unless the terms preclude it. This includes express conveyance, adverse possession, intestate transfer, and it doesn’t matter if the possession is rightful or wrongful

Question 18

What are the rights of the successor that has gotten an appurtenant easement along with the transfer of the dominant estate?

Answer 18

He has the same rights and privileges as his predecessor

Question 19

What is the major reason that after transfer of a dominant estate occurs, the new owner would not succeed to the previous easement?

Answer 19

If the terms extinguished the easement on transfer of the dominant estate

Question 20

Is it possible to transfer an appurtenant easement separate from the dominant estate?

Answer 20

No, and you cannot transfer the dominant estate but keep the easement. It either runs with the land or is extinguished

Question 21

What are the rules regarding succession to a servient estate?

Answer 21

If a servient estate is transferred, the burden of the easement runs with the land and is enforcible against the successors of the servient estate if the original parties intended it to run and the successor had notice of the easement. It is presumed to run if not stated otherwise

Question 22

If a successor buys a survient estate without notice of the easement, what happens?

Answer 22

It is extinguished and the new owner is not subject to it. But if he had notice, knowledge, or knowledge that would make a reasonable person suspect an easement exists, he is charged with notice that he would’ve gotten for making an inquiry, and thus he takes the subject to the easement

Question 23

If a purchaser of a servient estate does not purchase for value, what are the rules regarding an easement running with the land?

Answer 23

He is subject to the easement regardless of whether or not he had notice about it.

Question 24

What is the rule regarding succession of easement in gross?

Answer 24

These do not pass when the owner sells the land, but they must be assigned [although not all or assignable]

Question 25

How do you determine whether an easement in gross is assignable?

Answer 25

Express assignability provisions are given effect. Otherwise:
- if the purpose is personal satisfaction/non-commercial: there is a rebuttable presumption that it is not assignable, which can be overcome with enough evidence that the parties intended it to be assignable

*** All easements in gross are assignable unless the parties do not intend them to be or they offend public policy

Question 26

In order to find the intent regarding assignability of an easement in gross, what do courts consider?

Answer 26

• The relationship between the grantor and grantee (if it was personal, it is not assignable)
• how much assignability increases the burden on the servient [higher burden: not assignable]
  – consideration paid for the easement [higher: assignable]
  – degree that use of the easement is temporary and personal [very temporary: not assignable]

Question 27

If you grant your best friend an easement to walk across your land to the beach, can he transfer that easement?

Answer 27

No, because it was personal and thus nonassignable