Pg 34

Question 1

How do you transfer an easement?

Answer 1

– Transferring the burden: when the servient estate transfers, the burden goes with it
– transferring the benefit: depends on the type of easement
• in gross: originally not transferable, but modern view allows commercial and non-commercial easements to be transferred if the parties didn’t intend it to be useable only by the original dominant tenant
• appurtenant: this is attached to and part of the right of possession of the dominant tenement, so transferring title carries the easement’s rights with it automatically like a dog’s tail with the sale of the dog even if not mentioned in the deed.

Question 2

What is an exclusive easement?

Answer 2

The person can make sole use of the thing and take all substance from the land, and can transfer to as many people as he wants. It is possible for multiple people to have an exclusive easement right because you cannot take more than all

Question 3

If an easement didn’t specify whether it is divisible, what happens?

Answer 3

It can be divided but the usage cannot exceed what was originally granted

Question 4

Are profits in gross considered to be divisible?

Answer 4

• some jurisdictions: it is divisible if it is admeasurable (quantifiable)
• other jurisdictions: say you can only subdivide if it will continue to be worked as a common stock

*** ie: if you have the right to mine 50 tons of coal per month, that is admeasurable so some states let it be subdivided if it doesn’t exceed 50, but others say you can only divide it if all takers mine together not through separate operations

Question 5

If the servient estate is subdivided, what happens to the easement?

Answer 5

Each part is still subject to the easement unless the easement is only on certain portions

Question 6

If a dominant estate is subdivided, what happens to any applicable easements?

Answer 6

Each part of the dominant estate is allowed to benefit from the pre-existing easement, unless the original grant prohibited subdivision or the subdivided use unreasonably burdens the servient estate

Question 7

If you give someone a right of way across your property, and then she subdivides her land into three sections and conveys each, would all three new owners have a right of way across your property?

Answer 7

Yes, because each part of the newly divided dominant estate can benefit from the pre-existing easement unless that was expressly prohibited in the transfer or this new use unreasonably burdens the servient estate

Question 8

What are the many different ways that you can terminate an easement?

Answer 8

– Written release
– destruction
– merger
– abandonment
– BFP without notice
– changed circumstances
– adverse possession/prescription
– by creation
– estoppel
– merger of the two estates
– overuse
– express agreement between the parties for when the easement will end

Question 9

How does an easement terminate through adverse possession or prescription?

Answer 9

When the owner of the servient tenement/3rd person makes adverse use of the burdened parcel for a period of time to get prescription, this can extinguish the easement

Need: actual, open, notorious, hostile, and continuous use for the duration of the SOL and must physically prevent the easement from being used in a way that is incompatible with the authorized right of use.

If an item that blocks the easement is removable, it does not count. This includes things like a wire fence, vegetation, a stone wall, or mature trees. But substantial permanent structures that block the easement such as buildings do count as adverse possession/prescription

Question 10

How does being a BFP without notice terminate an easement?

Answer 10

If the successor is a BFP, the easement is extinguished. This means it wasn’t recorded and a visual inspection wouldn’t have revealed the easement

Question 11

How can changed circumstances terminate an easement?

Answer 11

If the easement becomes unreasonably burdensome on the servient estate, obsolete, or economically wasteful then it terminates the easement so long as the changed conditions adversely affect the benefited lots, and make it impossible to achieve the original parties’ intent even if the covenant is enforced

Question 12

Can destruction of a structure on the servient tenement terminate an easement?

Answer 12

Yes. Easements through buildings are limited to the life of the building, so destruction of the building would terminate the easement, and these are not revived if the building is replaced unless the parties intended it.

If the owner voluntarily destroys the building, some say the easement continues until the building would be destroyed by natural causes.

Party walls: can be terminated by implication if the wall becomes inadequate or dangerous to support the original buildings

Question 13

How can an easement be terminated based on its creating language?

Answer 13

The language of an express easement is strictly construed to determine its scope and term. If the language is unclear, the rights created can be interpreted to accommodate reasonable changes. If an easement is only intended to last for a certain purpose, it terminates when that purpose is accomplished or can no longer be accomplished. If an easement loses its purpose, it can no longer be used.

Ie: easement to cross land to get to the highway, but the highway is abandoned, the easement is terminated

Question 14

How can an easement be terminated by estoppel?

Answer 14

If the servient owner reasonably relies on the easement owner’s actions, engages in conduct that is inconsistent with the continuance of the easement, or suffers unreasonable harm, that extinguishes the easement

Question 15

How can an easement be terminated through an express release?

Answer 15

If a formal instrument is executed to the owner of the servient tenement, that can expressly release and thus terminate an easement

Question 16

How can an easement be terminated by implication?

Answer 16

For example if the necessity ended

Question 17

How can an easement be terminated through merger?

Answer 17

If the acquired estate gives the same use as the easement did, the servitude merges into the estate since the owner cannot have double rights in the same land. If the holder then sells the land, the easement is not revived. When the easement holder gets ownership of both the servient and dominant estate, the lesser rights are swallowed by the greater ones

Question 18

What is an example of an easement being terminated by merger?

Answer 18

If someone used to have an easement on someone else’s land, but then they bought that land, the two estates merged at the time of purchase and that extinguished the easement because that person no longer needed an easement on his own land.

Question 19

How can an easement be terminated through misuse or overuse?

Answer 19

Improperly exercising your rights can terminate your easement. The servient owner can get an injunction to enjoin excessive use of an easement, and if the court cannot limit the use, extinguishment can be given.

Ie: if you have an easement to use a road, but you link that road to a public street so that now everyone uses it, that would be overuse and the easement would likely be terminated

Question 20

How can you get termination of an easement through release and abandonment?

Answer 20

Through words or actions of intent to abandon plus the unequivocal act of abandonment. The easement owner releases himself in a formal written instrument and abandons the easement. Simple non-use alone is not enough.

Ie: not using an easement for 30 years because you’re out of the country is not abandonment, but letting a tree grow that blocks the entrance of an easement probably is abandonment [although there’s an argument that it could be cut down anytime]

Question 21

What are the elements required in order for an easement to be terminated through release and abandonment?

Answer 21

– cessation of use (need non-use)

– intent to relinquish (need an act showing this)

Question 22

What are some third-party actions that can terminate an easement?

Answer 22

Eminent domain, mortgage foreclosure, tax sales