Servitudes - Easements

Question 1

How is an affirmative easement created?

Answer 1

PING
Prescription
Implication
Necessity, or
Grant

Question 2

What parties are bound to a properly created affirmative easement?

Answer 2

Easement appurtenant: transferred automatically with dominant land.

Easement in gross: only those for commercial purposes are assignable.

Question 3

What is the remedy for a violation of an affirmative easement?

Answer 3

Injunction or damages

Question 4

What are the typical negative easements?

Answer 4

LASS
Light
Air
Support, and
Stream water

Question 5

How is a negative easement created?

Answer 5

Only with a signed writing by the grantor.

Question 6

What is the remedy for a violation of a negative easement?

Answer 6

Injunction or damages

Question 7

Define easement.

Answer 7

the grant of a non-possessory property interest that entitles its holder to use or enjoyment of another’s land.

Question 8

What kinds of easements pass automatically with the dominant tenement?

Answer 8

Easements appurtenant (land-land) - regardless of whether it is mentioned in the conveyance.

Question 9

Does an appurtenant easement transfer automatically with the burdened tenement?

Answer 9

Yes, unless the new owner is a BFP and did not have notice of the easement.

Question 10

What are the requirements to create an affirmative easement by grant?

Answer 10

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.

Question 11

What are the requirements of creating an affirmative easement by implication?

Answer 11

Previous use was apparent, and

Parties expected it would continue because it is reasonably necessary to the dominant land’s use and enjoyment.

Question 12

What are the requirements to create an affirmative easement by necessity?

Answer 12

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.

Question 13

How is an affirmative easement created by prescription?

Answer 13

COAH: 
Continuous use for statutory period (10 yrs NY)
Open and Notorious Use
Actual use
Hostile use (without permission)

Question 14

Can one party unilaterally expand the scope of an easement?

Answer 14

No. The scope of the easement is set by the terms that created it.

Question 15

How can an easement be terminated?

Answer 15

END CRAMP
Estoppel, Necessity, Destruction
Condemnation, Release, Abandonment, Merger, Prescription

Question 16

When is an easement terminated by estoppel?

Answer 16

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.

Question 17

When is an easement terminated by necessity?

Answer 17

An easement created by necessity automatically terminates when the necessity ends - but not if it was granted expressly.

Question 18

When is an easement terminated by destruction?

Answer 18

Destruction of the servient land not due to willful conduct of the servient owner.

Question 19

When does condemnation terminate an easement?

Answer 19

When the servient estate is condemned by eminent domain, the easement will terminate.

Question 20

When is a release to terminate an easement valid?

Answer 20

When it is written, and given by the easement holder to the servient holder.

Question 21

What constitutes abandonment for purposes of terminating an easement?

Answer 21

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.

Question 22

What constitutes termination of an easement by merger?

Answer 22

When the same person has title to the easement and the servient property. The easement will not be revived by later separation of title.

Question 23

What are the requirements for terminating an easement by prescription?

Answer 23

COAH factors: 
Continuous interference
Open and notorious interference
Actual interference, and
Hostile to the easement holder (defeated by consent!)

Question 24

What is an easement appurtenant?

Answer 24

An easement that benefits its holder in his physical use or enjoyment of his property

Two parcels:

1. Dominant - gets the benefit
2. Servient - bears the burden

Question 25

What is an easement ins gross?

Answer 25

An easement that gives the holder some personal or pecuniary advantage not related to the use or enjoyment of HIS OWN land

Question 26

What kind of easement is created for purposes of a utility company laying power lines on the land of another?

Answer 26

An easement in gross. The easement is not related to the utility company’s use or enjoyment of their own land