Property - EASEMENTS

Question 1

Easement

Answer 1

the grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the “servient tenement”

common e.g.s - privilege to lay utility lines on another’s land

Easements can be “affirmative” or “negative”

Question 2

Negative Easements

Answer 2

Negative Easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. They can only be created EXPRESSLY, by a WRITING SIGNED BY THE GRANTOR

4 generally recognized categories: LASS
(1) Light
(2) Air
(3) Support
(4) Stream Water from an artificial flow
minority of states have a 5th for:
(5) "Scenic View"

Question 3

Easements “Appurtenant” v. “Held in Gross”

Answer 3

An easement is APPURTENANT when it benefits its holder in his physical use or enjoyment of his property
-it takes two, there is a dominant and servient tenement
Dominant tenement receives the benefit, and servient tenement bears the burden
-passes AUTOMATICALLY with the dominant tenement, REGARDLESS OF WHETHER it is even mentioned in the conveyance
EXCEPTION: burden of easement appurtenant also passes automatically with servient estate, UNLESS the new owner is a bona fide purchaser WITHOUT NOTICE of the easement

e. g. A grants B a right-of-way across A’s land so B can more easily reach his land
- A is the SERVIENT Tenement
- B is the DOMINANT Tenement

Easement is IN GROSS if it confers upon its holder only some PERSONAL or PECUNIARY advantage that is not related to (independent of) his use or enjoyment of his land. Here, SERVIENT land is burdenened, but there is no benefited or dominant tenement

e. g. O gives friend right to swim and boat on his lake
- generally easement in gross transferable NOT TRANSFERABLE UNLESS it is for a commercial or economic purpose

Question 4

Creation of an Affirmative Easement

Answer 4

PING

(1) Prescription
(2) Implication
(3) Necessity
(4) Grant

Question 5

Easement by Grant (the “G” in PING)

Answer 5

An easement to endure for more than one year MUST BE IN WRITING that complies with formal elements of a deed
–This is bc of Statute of Frauds. The writing to evidence the easement is called “a deed of easement”

Question 6

Easement by “Implication” (The “I” in PING)

Answer 6

Easement will be created “by Implication” if

(1) the previous use was apparent and
(2) the parties expected that it would continue because it is reasonably necessary to the dominant land’s use and enjoyment

e.g. A owns 2 lots, Lot 1 is hooked up to a sewer drain located on Lot 2. A sells Lot 1 to B with no mention of B’s right to continue to use the drain on A’s remaining lot 2. courts will imply an easement if both of those above requirements are met (which they probably will be)

Question 7

Easement by Necessity (The “N” in PING)

Answer 7

The landlocked setting. An easement of right of way will be implied by NECESSITY if the grantor conveys a portion of his land with no way out except over part of the grantor’s remaining land

Question 8

Easement by Prescription (The “P” in PING)

Answer 8

Remember COAH

(1) Continuous use for the statutory period (NY** period is 10 years)
(2) Open and Notorious use (owner sees me)
(3) Actual use - literal entry
(4) Hostile - without permission

NOTE: permission defeats the acquisition of an easement by prescription. An easement by prescription requires that the use be hostile

Question 9

The Scope of an Easement

Answer 9

The scope of an easement is set by the terms that created it - that is, scope is dictated by the “reasonable intent of the original parties”

unilateral expansion by benefited party not allowed

some rules of construction:

(1) ambiguities are resolved in favor of the grantee (unless the conveyance is gratuitous)
(2) subsequent conduct of the parties respecting the arrangement is relevant
(3) parties are assumed to have intended a scope that would reasonably serve the purposes of the grant and to have foreseen reasonable changes in the use of the dominant estate

Question 10

Termination of an Easement

Answer 10

END CRAMP

(1) Estoppel
(2) Necessity
(3) Destruction of servient land
(4) Condemnation of servient estate (by eminent domain
(5) Release
(6) Abandonment
(7) Merger Doctrine
(8) Prescription

Question 11

Termination of Easement by ESTOPPEL

Answer 11

Termination of an Easement by ESTOPPEL occurs when the servient owner materially changes his or her position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced

e.g. A tells B that A will no longer be using her right-of-way across B’s land. B, in reasonable reliance, builds a swimming pool on B’s parcel, thereby depriving A of an easement. In equity, A, the easement holder, is estopped from enforcing the easement bc sevient landowner relied on it

Question 12

Termination of Easement by NECESSITY

Answer 12

Easements created by necessity expire as soon as the need ends. However, if the easement, attributable to necessity, was nonetheless created by express grant, it wont end when the need ends

Question 13

Termination of Easement by DESTRUCTION

Answer 13

Destruction of the servient land, other than through willful conduct of the servient owner will end the easement

Question 14

Termination of Easement by CONDEMNATION of the servient estate

Answer 14

If servient estate condemned by govt through use of Eminent Domain, the easement will end

Question 15

Termination of Easement by RELEASE

Answer 15

A written release by the easement holder to the servient owner will terminate the easement

Question 16

Termination of Easement by ABANDONMENT

Answer 16

The easement holder must demonstrate by PHYSICAL ACTION the intent to never use the easement again
-note, not enough to just say it, or not use it

e.g. A has right-of-way across B’s parcel. A erects a structure on A’s parcel that precludes her from ever reaching B’s parcel. This sort of action signifies abandonment.
By contrast, mere nonuse, or mere words are insufficient to terminate abandonment

Question 17

Termination by MERGER DOCTRINE

Answer 17

The easement is extinguished when title to the easement and title to servient land become vested in same person.

• aka if owner of servient estate buys dominant estate or vice versa
• Note: even if resell the piece of land, once they have merged the easement is terminated, it does not reappear when you re-separate the land by subsequent sale

Question 18

Termination of Easement by PRESCRIPTION

Answer 18

remember COAH
Continuous
Open and Notorious
Actual
Hostile

same deal except this time the hostile use, is use hostile to the easement holder

Question 19

The License

Answer 19

License is a mere privilege to enter another’s land for a delineated purpose

Licenses are not subject to the Statute of Frauds. Thus, you do NOT need a writing

Licenses are FREELY REVOCABLE, at the will of the licensor, unless estopped to bar revocation
-note: estoppel will apply to bar revocation only when the licensee has invested substantial money or labor or both in REASONABLE RELIANCE on the license’s continuation

classic e.g.s
Tickets to an event are freely revocable licenses (though if they revoke, you may be able to sue for breach of contract)

neighbors talking by the fence - “B you can have the right of way across my land - this is an oral easement and is unenforceable bc it violates the SOF, instead just creates a freely revocable license

Question 20

The PROFIT

Answer 20

A “PROFIT” entitles its holder to enter the servient land and TAKE FROM IT, the sol, or some substance of the soil - e.g.. Timber, minerals, oil