Servitudes and Easements

Question 1

Types of Servitudes

Answer 1

Easements
Licenses
Profits
Real Covenants
Equitable Servitudes

Question 2

Negative Easements

Answer 2

Entitles the dominant owner to prevent the servient owner from doing a particular act on the servient land. (think about growing trees that block a view of the ocean)

Question 3

Affirmative Easements

Answer 3

Authorizes the holder to do a particular act on the servient land. (think crossing land, power lines, railroads, drainage, hunting, or boating)

Question 4

Easement Appurtenant

Answer 4

Exists only when there is both dominant land and servient land. Appurtenant easement benefits the easement holder in using the dominant land. It attaches to the dominant land, not to any particular owner of that land.

Question 5

Easement In Gross

Answer 5

An easement that is personal to the holder. It benefits the holder in a personal sense, whether or not he owns any other parcels of land. This type of easement involves only servient land. (think of a utility company that holds easement allowing it to maintain power lines even though utility company does not own the land.)

Question 6

Interpreting Easements

Answer 6

Is the easement expressed or implied?
Is the intent of the parties clear?
If no clear intent:
–Look at the language of the document

–The circumstances surrounding the creation of the easement.

• -Whether express, implied or prescriptive?
• -Purpose of the easement?

Question 7

The Rule of Reason

Answer 7

Apply the ROR only in the absence of clear evidence of actual intent.

–Easement holder entitled to do anything reasonably necessary for the full enjoyment of the property.

–The owner of the servient estate may make any use of the burdened property that does not unreasonably interfere with the use and enjoyment of the easement for its intended purpose.

Question 8

Definition of Easement

Answer 8

In general, an easement is a non-possessory right to use land in the possession of another.

1) Does not give its holder any right to possession of the land.
2) The holder merely has the right to use the land for a limited purpose.
3) Viewed as an interest in land and subject to the statute of frauds.
4) Burdens the land possessed by another person–a person does not hold an easement to her own land.

Question 9

Creating an Expressed Easement

Answer 9

Voluntarily created in a deed, will or other written instrument. The vast majority of easements are express easements.

Question 10

Easement by Grant

Answer 10

An easement created when landowner grants or conveys the easement to another person.

Question 11

Easement by Reservation

Answer 11

When a grantor coveys land to another, but retains or reserves an easement in that land.

Question 12

Written elements of Easement by Grant

Answer 12

The deed is subject to the Statute of Frauds and must:

1) Be in writing
2) Identify the grantor and grantee
3) Contain words manifesting an intention to create an easement.
4) Describe the affected land
5) Be signed by the grantor

Question 13

Elements required for an Easement Implied from a prior existing use

Answer 13

1) Severance of title to land held in common ownership.
2) An existing, apparent, and continuous use when severance occurs, AND
3) Reasonable necessity for the use at time of severance.

Question 14

Easement Implied from a prior existing use:

Understanding Severance of Title

Answer 14

1) A tract of land held in common ownership must be divided into two or more parcels.
2) At least one parcel must be transferred to a new owner
3) At least one parcel must be retained by the original owner.

Question 15

Easement Implied from a prior existing use:

Understanding Existing, Apparent and Continuous Use

Answer 15

1) Apparent, continuous use of part of the tract for the benefit of another part, which already existed when the title is severed.
2) Apparent does not necessarily mean visible, when it can be discoverable or implied from a structure such as a house.
3) Must be continuous or permanent as opposed to temporary, sporadic, or occasional. (explain this element in terms of NOTICE to the parties)

Question 16

Easement Implied from a prior existing use:

Understanding Reasonably Necessary

Answer 16

1) Most states require only a showing or reasonable necessity.
2) Need not be absolutely necessary
3) Met when the owner of the dominant tenement would be forced to expend substantial money or labor in order to provide a substitute for the easement.

Question 17

Prescriptive Easement

Answer 17

1) Closely related to the doctrine of Adverse Possession
2) Property rights in the land of another can be acquired by conspicuous, long-term use.
3) Statutory time periods must be met.
3) Negative easements cannot be established through prescription.

Question 18

Example of Irrevocable Licenses

AKA Easements by Estoppel

Answer 18

Example: Owner Z of a landlocked parcel obtains permission from owner X of an adjacent parcel, to use his road to access the property to build a cabin. Z spends considerable money on the cabin and improving the access road. After the cabin is built owner X cannot block owner Z from using the road.

Question 19

Elements of Irrevocable License

Answer 19

1) A license, typically for access purposes
2) Licensee’s expenditure of substantial money or labor in good faith reliance, AND
3) The licensor’s knowledge or reasonable expectation that reliance will occur.

Question 20

Use of Easement to Benefit Land other than Dominant Land

Answer 20

1) Generally easement holder cannot use the easement to benefit any parcel other than the dominant land.
2) Remedy for violation of this rule: Injunction.
3) Modern decisions now begin to erode this traditional standard.

Question 21

Transfer of Easements:

Easements Appurtenant

Answer 21

Any transfer of title to the dominant land also automatically transfers the benefit of the easement, unless there is a contrary agreement.

Question 22

Transfer of Easements:

Easements In Gross

Answer 22

Three historical stages:

1) Early rule: Permitting the assignment might unfairly increase the burden on the servient land–“over-hunting ducks.”
2) Stage two: Commercial easements in gross were freely transferable, whereas noncommercial easements in gross were not transferable.
3) Modern rule: Any easement in gross is freely transferable, unless circumstances how that parties “should not reasonably have expected” this result.

Question 23

Seven ways to terminate Easements

Answer 23

1) By expressed limitation
2) Voluntary release of rights to servient owner
3) One owner acquires both the dominant and servient parcels: termination by merger
4) By eminent domain or estoppel
5) By abandonment
6) By misuse
7) By prescription

Question 24

Licenses

Answer 24

Informal permission that allows the licensee to use the land of another for a narrow purpose. Does not need to be written.

Examples: spectator at a football game, Guest at a holiday party, customer at a grocery store.

Does not: 1) create an interest in the land, 2) Licensor may revoke at any time, 3) Statute of Frauds does not apply.

Question 25

Profits A Prendre

Answer 25

The right to enter the land of another and remove timber, minerals, oil, gas, gravel, game, fish, or other physical substances. Generally subject to the same rules that apply to easements.