Servitudes: Easements

Question 1

Easements: Definition

Answer 1

A non-possessory property interest that confers a right to use another’s land

• Servient estate = burdened land
• Dominant estate - benefited land (not always applicable)

Question 2

Easements: 4 types

Answer 2

Easement appurtenant
Easement in gross
Affirmative easement
Negative easement

Question 3

Easements: Easement Appurtenant

Answer 3

Entitles a dominant estate owner to use a servient estate’s land

• Attaches to the dominant estate and passes automatically (even if not mentioned in a conveyance)

Question 4

Easements: Easement in gross

Answer 4

Entitles an individual or entity (not a dominant landowner) to use the servient estate

• Attaches only to servient estate; there is no dominant estate
• Similar to a license, but irrevocable; may be transferred

E.g. Right to place a billboard on another’s lot, right to run utility line across land, right to fish in another’s pond

Question 5

Easements: Affirmative easement

Answer 5

Entitles its holder to make affirmative use of the servient estate

Question 6

Easements: Negative easement

Answer 6

Entitles its holder to restrict the servient estate from otherwise permissible activities

Question 7

Express Easement

Answer 7

Easements may be expressly created by grant or reservation. Must be:

1) In writing (otherwise will violate SOF), and
2) Signed by the servient estate holder

Question 8

Easement by Prescription

Answer 8

A process of acquiring an easement, similar to acquiring title by AP. Requires:

1) Continuous
2) Open and notorious
3) Actual
4) Hostile

• Easement can also be terminated by prescription

Question 9

Easement by Implication

Answer 9

An easement legally implied based on prior use by a common grantor on land subsequently divided into multiple plots. Requirements:

1) Easement exists prior to division of single tract of land
2) Common grantor’s use is continuous and apparent
3) Use is reasonably necessary for enjoyment of dominant tenement
4) Parties intended the use to continue after division of land

Question 10

Easement by Implication: Exceptions

Answer 10

Easement may be implied without prior use where:

• Subdivision plot: Lots in a subdivision are sold with reference to a map plan, or
• Profit a prendre: Holder has an implied easement to pass over the land’s surface as reasonably necessary to extract materials (e.g. wood, coal)

Question 11

Easement by Necessity

Answer 11

An easement can arise if access to or from a property is impossible without the easement (i.e. the easement’s existence becomes necessary)

Question 12

Easement by Necessity: Creation

Answer 12

Usually arises when a landowner sells a portion of their property and the resulting division deprives one lot owner of access to a public road or utility

The owner of the servient estate can choose a reasonable location for the easement

Question 13

Easement by Necessity: Termination

Answer 13

Expires automatically when the necessity ends

Question 14

Negative Easements: Definition

Answer 14

Entitles the holder to prevent the servient landowner from engaging in otherwise permissible actions on their own land

Question 15

Negative Easements: 4 categories

Answer 15

LASS:

Light
Air
Subjacent or lateral support
Stream of water from an artificial flow

Question 16

Negative Easements: Creation

Answer 16

Can only be created by express writing signed by grantor

• Restrictive covenants are utilized more frequently than negative easements to prevent landowner from engaging in certain activities on their land

Question 17

Termination of Easements: 8 Ways

Answer 17

NED CAMPER!

Necessity
Estoppel
Destruction

Condemnation
Abandonment
Merger
Prescription
Expiration
Release

Question 18

Termination of Easements: Necessity

Answer 18

Easements by necessity expire when the need that created them ends

Question 19

Termination of Easements: Estoppel

Answer 19

Where servient owner reasonably relies on an easement holder’s conduct or representations indicating an intent to abandon the easement; non-use is insufficient

Question 20

Termination of Easements: Destruction

Answer 20

(Of the servient tenement) - Unless destructions results from willful conduct of the servient owner

Question 21

Termination of Easements: Condemnation

Answer 21

Condemnation of the servient estate by governmental eminent domain power will terminate the easement

Question 22

Termination of Easements: Abandonment

Answer 22

Easement is terminated if its holder physically demonstrates an intent to permanently abandon it (mere words or non-use insufficient)

Question 23

Termination of Easements: Merger

Answer 23

Easement terminates automatically if one person acquires title of both the easement and the servient land

Question 24

Termination of Easements: Prescription

Answer 24

Servient owner may extinguish an easement by interfering with it using elements of AP

Question 25

Termination of Easements: Expiration

Answer 25

If easement was established for a set term, or to expire upon stated conditions

Question 26

Termination of Easements: Release

Answer 26

Easement holder can terminate the easement by giving a deed of release to the servient tenement owner