Rights in Land - Easements, Profits, and LIcenses

Question 1

The creation of an easement appurtenant requires

Answer 1

two pieces of property: a dominant estate and a servient one.

This easement will automatically run with the land, and after being recorded for the first time does not need to be re-identified in any deeds accompanying later conveyances.

The owner of the servient estate (the estate that the easement crosses) has the right to select the location of the easement. The only limit on such selection is that the location chosen must be a reasonable.

Question 2

What is an easement?

Answer 2

An easement is a right held by one person to use another’s land.

Question 3

What is an express easement? Types?

Answer 3

An express easement can be created by grant or by reservation:

1. By Grant. An express easement by grant arises when it is affirmatively created by the parties in a writing that satisfies the statue of frauds.
2. By Reservation. An express easement by reservation is created when a grantor conveys land but reserves an easement right in that land for his own use.

Question 4

An implied easement by implication is created when:

Answer 4

1.A single tract of land is divided by a common owner and a piece of the land is conveyed to another;

2. Before the division, the common owner used the single tract of land as if there was an easement on it;
3. After the division, the common owner’s use of the conveyed land must be
   continuous and apparent;

AND

4. Such use must be reasonably necessary for the owner’s use and enjoyment.

Question 5

What is an implied easement by necessity?

Answer 5

An implied easement by necessity is created when:

1. A single tract of land is divided by a common owner and a piece of the land is conveyed to another;

AND

2. Necessity arose when the land was divided into two separate estates where one of the properties became virtually useless without the easement.

Also applies to a situation where building is only accessible via stairway in another building (assuming above elements are met).

Question 6

What is an implied easement by prescription?

Answer 6

An implied easement by prescription is created when a landowner allows a trespasser to use his land continuously for the statutory period.

The trespasser’s use must be:

1. Hostile (i.e., without permission from the owner of the land);
2. Open and notorious (i.e., not hidden);

AND

3. Continuous for the statutory period.

Question 7

How is an implied easement by prescription different than adverse possession requirements?

Answer 7

Unlike adverse possession, the use need NOT be exclusive (e.g., a public easement to access a beach).

Question 8

In terms of terminating an easement, what is a release?

Answer 8

Release. An easement is terminated if the holder expressly releases it. The release must be in writing and satisfy the statute of frauds.

Question 9

In terms of terminating an easement, what is a merger?

Answer 9

Merger. An easement is terminated if the holder acquires fee title to the underlying estate – the easement merges into the title.

Question 10

In terms of terminating an easement, what is an abandonment?

Answer 10

Abandonment. An easement is terminated if the holder demonstrates an intent to never use the easement again through physical action (i.e., requires more than non-use or statements).

Question 11

In terms of terminating an easement, what is a prescription?

Answer 11

Prescription. An easement is terminated if the holder fails to protect against trespassers for the statutory period.

Question 12

In terms of terminating an easement, what is a sale to a bona fide purchaser?

Answer 12

Sale to a Bona Fide Purchaser. An easement may be terminated if the landowner sells the property.

Question 13

In terms of terminating an easement, what is estoppel?

Answer 13

Estoppel. An easement is terminated if the landowner reasonably relies to his detriment on the easement holder’s assurance that the easement will no longer be used.

Question 14

In terms of terminating an easement, what is end of necessity?

Answer 14

End of Necessity. An easement by necessity lasts as long as the easement is necessary – if it is no longer necessary, the easement terminates.

Question 15

What is a profit (as opposed to an easement)?

Answer 15

A profit is a right to enter another’s land to remove a specific natural resource.

Question 16

What is a license (as opposed to an easement)?

Answer 16

A license is a revocable permission to use another’s land (e.g., a ticket to a music concert).

Question 17

Fixture

Answer 17

A fixture is tangible personal property (i.e., chattel) that is attached to real property in such a manner that it is treated as part of the real property when determining its ownership.

Question 18

When is a chattel considered a fixture?

Answer 18

Generally, a chattel is considered a fixture if the owner of real property intends for the chattel to become a fixture by attaching it to the real property. Such intent is judged by applying an objective, reasonable person standard that examines such factors as:

1. The importance of the chattel to the real property;
2. Whether the chattel was specially designed for use on the real property;

AND

3. The amount of damage that removal of the chattel would cause to the real property.

Question 19

Are structures built on real property treated as fixtures?

Answer 19

No. Structures built on real property (e.g., walls) and materials incorporated into a structure (e.g., bricks used in making a wall) become part of the real property. The owner of the real property is generally also the owner of any structures on the real property (including the materials incorporated into the structures).

Question 20

If an easement is created but not specifically located on the servient tenement…

Answer 20

…, a location of sufficient size to make the intended use reasonably convenient will be implied. The owner of the servient tenement may indeed select the location of the easement so long as her selection is reasonable. (See immanuel q # 28)

Question 21

What is the right to “lateral support”?

Answer 21

One of the rights incident to land is the right to “lateral support.” That is, every landowner is entitled to have his land receive the necessary physical support from adjacent and underlying soil. The right to lateral support is absolute — that is, once support has been withdrawn and injury occurs, the responsible person is liable even if he used utmost care. However, the absolute right to later support exists only with respect to land in its natural state. If owner A has constructed a building, and the soil under the building subsides in part due to the acts of adjacent owner B, but also in part because of the weight of A’s building itself, B is not liable without negligence.

Question 22

If A sells to B a lot with no access to a public right-of-away, neither had ever seen the lot; did A breach warranty of marketable title?

If they close on the property; deed delivered and accepted; then B visits the property and sues for breach of warranty of marketable title, will B succeed?

Answer 22

Yes. Title not marketable if lot lacks access to a public right-of-way.

Nope. That is one of the present covenants that ends upon acceptance of the deed. Only the future covenants (aka the title covenants, which include superiority of title, seisin, right to convey, quiet enjoyment, and the general warranty) are available to B to sue on, and no road access does not breach any of those, so B can’t sue.

Question 23

One of the rights associated with a defeasible fee simple is the right

Answer 23

to remove minerals and other resources from the land. That right is not subject to any requirement to provide notice to or obtain permission from any other parties who hold an interest in the land.

Question 24

If I am a tenant and I install standard-sized combination storm windows, freestanding refrigerator , built-in electric stove and carpeting to cover plywood, what of that is considered a fixture and what I take with me?

Answer 24

You can take all of it with you: none of it is firmly embedded; all of it is basically standard-sized and not designed specifically for the property; would not cause must damage; not important to the value of the real property.

Chattel here is NOT FIXTURE.

Question 25

But the creation of an easement appurtenant requires

Answer 25

two pieces of property: a dominant estate and a servient one.

See MBE Q folder, q 36

Question 26

If I own A, and have an easement over B, and then gain life estate o’ship of B, does this end my easement?

Answer 26

No. If I had been given full title over B, then this would be a “merger” and easement would be terminated (and future owners of A, therefore, would not get the easement over B), but if just a life estate, no merger, and easement stays

(see Q 39 MBE Q’s folder)

Question 27

A buys land from B with option for B to use land up to 30 days. B overstays then refuses to leave; what is A’s best argument?

Answer 27

Best argument is that B is a licensee with a contractual right to use the land owned by A. A can revoke at any time.

Tenant at sufferance is not the best option because they did not agree on a tenant-landlord relationship that can be ended at any time by either party. So when you picked this answer choice you were trippppiiiiinnnnnn. obviously licensee best.