Property II - Easements

Question 1

Easements

Answer 1

Non-possessory right to enter and use land in possession of another.

• Interest in land.
• Not an estate/ownership in land (Urbaitis)

Question 2

Duty and Liability with Easements

Answer 2

Owner of the easement has a (1) duty to repair and is (2) liable for damages.

Question 3

Servient v. Dominant Estate

Answer 3

Servient (Burdened Property) - Real property an easement is imposed upon in favor of another property (benefited property).
- Ex.: Right-of-way, utility lines, etc.

Dominant (Benefited Property) - Real property holding usage of easement across servient property.

Question 4

Profit v. Easement

Answer 4

Profit gives the owner right to enter upon someone’s land to take something of value from it.

Question 5

Appurtenant v In Gross

Answer 5

Appurtenant - Burden on one property and benefit on adjoining property.

In gross - No dominant estate. Gives a right to someone without regard to ownership of land.

• Ex.: easement to enter land and fish in a pond
• (burden one property and benefit an individual - not property)

Question 6

Affirmative v. Negative Easements

Answer 6

Affirmative - easement allowing someone to use servient’s property.

Negative - easement restricting servient from some use of his property (he would otherwise be allowed to do).

Question 7

Categories of Easements

Answer 7

1. Express Easements
2. Implied Easement by Necessity
3. Implied Easement by Prior Use
4. Prescriptive Easements (like Adverse Possession)
5. Irrevocable License/Estoppel (Stoner v. Zucker - irrigation)
6. Reservation Easement (First Church of Christ)

Question 8

Express Easements

Answer 8

1. Created by Deed or Contract
2. Reservation conveys whole interest in property to grantee, but reserved new interest in grantor.
   a. Exception: Provision excluding pre-existing servitude
3. Common Law - someone cannot reserve interest in stranger to title
   a. McGuigan could have reserved easement for herself
   4.

Question 9

Easements to Strangers

Answer 9

Common Law:
Grantor could not reserve interest in the property to a stranger to the title.
- Ex.: McGuigan could have reserved easement for herself

Modern Approach:
Interpret the intent of the parties.
- Ex.: First Church of Christ??

Question 10

Implied Easements by Necessity

Elements

Answer 10

1. Unity of Title (dominant and servient originally one parcel)
2. Severance of unity of title
3. Necessity (at severance)
   a. Landlocked (necessity)
   b. If road access opens elsewhere, easement closed.
   c. If separate road access later closed, necessity NOT reopened (unless in New York??).

Question 11

Implied Easements by Prior Use

“Quasi”-Easement

Answer 11

1. Unity of title
2. Severance
3. BEFORE SEVERANCE, must be apparent prior use of property. (not landlocked) Must be:
   a. apparent
   b. obvious
   c. continuous, and
   d. permanent
4. Reasonable necessity
   - Like adverse possession, but no right of ownership
   - Gives right to use land, if used for statutory period (# of years)

Question 12

Prescriptive Easements

Answer 12

10 Years+ or statutory period.

• Adverse approaches:
  1. Adverse if open and continuous. Rebuttable if:
  a. Use of another pre-existing road
  b. Use was permissive (license)
  2. Presumed permissive (dominant must show specific/direct evidence of adversity)
  3. Look at evidence without presumption
  4. Presumed adverse if owner silently assents to claimant (acquiescence)
  a. UNLESS owner closes way to property
  b. Statute of Limitations may stop when owner stops acquiescing
  i. Dominant estate may start clock again by removing blockade and owner acquiesces

Question 13

Elements of Prescriptive Easements

Answer 13

1. Open
2. Continuous
3. Exclusive
4. Adverse
5. Notorious

(Also HAVEC or HAAVEU)

Question 14

HAAVEU

Answer 14

1. Hostile
2. Adverse
3. Actual
4. Visible (open/notorious)
5. Exclusive
6. Uninterrupted/Continuous for Statutory Period

Question 15

Profit a prendre

Answer 15

Right to remove items (i.e., oil, gas, timber, game)

- American courts recognize profits in the same manner as easements

Question 16

Irrevocable Licenses/Estoppel

Answer 16

License to use property that creates an irrevocable easement.

• Exists for as long as nature of license calls for
• Time plays role in element of reliance
• Passes automatically to dominant estate

Question 17

Elements of an Irrevocable License

Answer 17

1. Knowledge of owner/or permission
2. Substantial expenditures ($)
3. Use of easement land
4. Reliance

Question 18

Lease v. Easement v. License

Answer 18

Lease:

1. Right to use and possess
2. Estate in land
3. Contract and conveyance
4. SOF applies
5. Irrevocable (absent cause)

Easement:

1. Right to use
2. Interest in land
3. Contract and conveyance
4. Irrevocable (absent abandonment in some cases)

License:

1. Right to use
2. Possession to use
3. Contract only
4. no SOF
5. Freely revocable except when couple with interest

Question 19

Scope of an Easement

Answer 19

Scope cannot be increased in order to benefit a non-dominant estate.

Question 20

Easements to Third Parties

Answer 20

C.L.:
Easements may not be reserved for a third-party.

M.A.:
Easement may be reserved on behalf of third-party if intended (First Church of Christ).

Question 21

Transfers of Easements

Answer 21

Appurtenant - easements and profits burden and benefit automatically pass with transfer.

In gross - burden automatically passes to servient estates, but benefit must be expressly passed (or by irrevocability).

In gross profits and commercial easements:
Presumed transferrable.