Servitudes - Easements Flashcards
How is an affirmative easement created?
PING Prescription Implication Necessity, or Grant
What parties are bound to a properly created affirmative easement?
Easement appurtenant: transferred automatically with dominant land.
Easement in gross: only those for commercial purposes are assignable.
What is the remedy for a violation of an affirmative easement?
Injunction or damages
What are the typical negative easements?
LASS Light Air Support, and Stream water
How is a negative easement created?
Only with a signed writing by the grantor.
What is the remedy for a violation of a negative easement?
Injunction or damages
Define easement.
the grant of a non-possessory property interest that entitles its holder to use or enjoyment of another’s land.
What kinds of easements pass automatically with the dominant tenement?
Easements appurtenant (land-land) - regardless of whether it is mentioned in the conveyance.
Does an appurtenant easement transfer automatically with the burdened tenement?
Yes, unless the new owner is a BFP and did not have notice of the easement.
What are the requirements to create an affirmative easement by grant?
To endure for more than 1 year, they must be in writing that complies with the formal elements of a deed: a deed of easement.
What are the requirements of creating an affirmative easement by implication?
Previous use was apparent, and
Parties expected it would continue because it is reasonably necessary to the dominant land’s use and enjoyment.
What are the requirements to create an affirmative easement by necessity?
A right-of-way easement will be implied by necessity whenever grantor conveys a portion of his land and there is no way to get out except over part of the grantor’s other land.
How is an affirmative easement created by prescription?
COAH: Continuous use for statutory period (10 yrs NY) Open and Notorious Use Actual use Hostile use (without permission)
Can one party unilaterally expand the scope of an easement?
No. The scope of the easement is set by the terms that created it.
How can an easement be terminated?
END CRAMP
Estoppel, Necessity, Destruction
Condemnation, Release, Abandonment, Merger, Prescription
When is an easement terminated by estoppel?
When the servient owner materially changes his or her position in reliance on the easement holder’s assurance that he will not enforce the easement.
When is an easement terminated by necessity?
An easement created by necessity automatically terminates when the necessity ends - but not if it was granted expressly.
When is an easement terminated by destruction?
Destruction of the servient land not due to willful conduct of the servient owner.
When does condemnation terminate an easement?
When the servient estate is condemned by eminent domain, the easement will terminate.
When is a release to terminate an easement valid?
When it is written, and given by the easement holder to the servient holder.
What constitutes abandonment for purposes of terminating an easement?
Easement holder’s physical action demonstrates an intent to never use the easement again.
- non-use is insufficient to terminate an easement!
- words alone are insufficient to terminate an easement by abandonment.
What constitutes termination of an easement by merger?
When the same person has title to the easement and the servient property. The easement will not be revived by later separation of title.
What are the requirements for terminating an easement by prescription?
COAH factors: Continuous interference Open and notorious interference Actual interference, and Hostile to the easement holder (defeated by consent!)
What is an easement appurtenant?
An easement that benefits its holder in his physical use or enjoyment of his property
Two parcels:
- Dominant - gets the benefit
- Servient - bears the burden
What is an easement ins gross?
An easement that gives the holder some personal or pecuniary advantage not related to the use or enjoyment of HIS OWN land
What kind of easement is created for purposes of a utility company laying power lines on the land of another?
An easement in gross. The easement is not related to the utility company’s use or enjoyment of their own land
