Servitudes

Question 1

What is an easement?

Answer 1

An easement is a grant of a non-possessory interest that entitles it’s holder to some form of use or enjoyment of another’s land.

Question 2

What are the 4 types of negative easement?

Answer 2

Light

Air

Support

Stream water

Scenic view (only in some states)

Question 3

What is a negative and an affirmative easement?

Answer 3

Affirmative easement = the right to do something in the servient land.

Negative easement = entitles the easement holder to prevent the servient landowner from doing something that they would otherwise have a right to do on their land.

Question 4

How is a negative easement created?

Answer 4

Only:

Expressly

In writing

Signed by grantor

Question 5

An easement is appurtenant when…?

Answer 5

It benefits the holder’s physical use or enjoyment of his property.

Usually involves two parcels of land. One will be the dominant tenement (getting benefit of easement) and the other will be servient, bearing the burden.

Question 6

An easement is in gross when…?

Answer 6

It confers upon the holder a personal or pecuniary advantage unrelated to their use and enjoyment of the land.

Question 7

Is there a servient or dominant tenement for an easement in gross?

Answer 7

The burdened land is servient, but no dominant tenement here.

Question 8

Is an easement in gross transferable?

Answer 8

Not unless it is commercial

Question 9

How does an easement appurtenant transfer?

Answer 9

For the dominant tenement = automatic transfer

For the servient tenement = transfers UNLESS: (1) the new owner is a BFP; and (2) without notice of the easement.

Question 10

How do you create and affirmative easement?

Remember: P I N G

Answer 10

PRESCRIPTION (analogous to adverse possession) — C O A H

IMPLICATION (because there was a previous easement that was: (1) apparent, and (2) the parties expected it to survive (because it was reasonably necessary for use/enjoyment)

NECESSITY

GRANT (by written deed of easement)

Question 11

To acquire an easement through adverse possession, does it have to be exclusive?

Answer 11

No. Actual, but for easements, this doesn’t mean exclusive.

Question 12

How can you terminate an easement?

Remember: END CRAMP

Answer 12

ESTOPPEL (because the servient landowner materially changes their position in reliance that easement will no longer be enforced)

NECESSITY (now over)

DESTRUCTION

CONDEMNATION

RELEASE

ABANDONMENT (requiring physical action by easement holder. That means intention never to use the easement again. Mere non-use insufficient)

MERGER

PRESCRIPTION (by servient landowner interfering through adverse possession)

Question 13

What is a license?

Answer 13

A privilege to enter another’s land for some delineated purpose.

Question 14

Must a license be in writing?

Answer 14

No. It falls outside the SoF.

Question 15

In which circumstances is a license not freely revocable?

Answer 15

Only when there is estoppel.

When the licensee has invested substantial money or labour in reliance on the license continuing.

Question 16

What is a profit?

Answer 16

Gives the holder the right to enter servient land and take from it the soul or some other product.

Question 17

When is a profit created?

Answer 17

Remember P I N G

PRESCRIPTION (analogous to adverse possession) — C O A H

IMPLICATION (because there was a previous profit that was: (1) apparent, and (2) the parties expected it to survive (because it was reasonably necessary for use/enjoyment)

NECESSITY

GRANT (by written deed)

Question 18

How is a profit terminated?

Answer 18

ESTOPPEL (because the servient landowner materially changes their position in reliance that the profit agreement will no longer be enforced)

NECESSITY (now over)

DESTRUCTION

CONDEMNATION

RELEASE

ABANDONMENT (requiring physical action by profit holder. That means intention never to use the right to take a profit again. Mere non-use insufficient)

MERGER

PRESCRIPTION (by servient landowner interfering through adverse possession)