Servitudes: Easements Flashcards
Easements: Definition
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)
Easements: 4 types
Easement appurtenant
Easement in gross
Affirmative easement
Negative easement
Easements: Easement Appurtenant
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)
Easements: Easement in gross
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
Easements: Affirmative easement
Entitles its holder to make affirmative use of the servient estate
Easements: Negative easement
Entitles its holder to restrict the servient estate from otherwise permissible activities
Express Easement
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
Easement by Prescription
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
Easement by Implication
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
Easement by Implication: Exceptions
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)
Easement by Necessity
An easement can arise if access to or from a property is impossible without the easement (i.e. the easement’s existence becomes necessary)
Easement by Necessity: Creation
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
Easement by Necessity: Termination
Expires automatically when the necessity ends
Negative Easements: Definition
Entitles the holder to prevent the servient landowner from engaging in otherwise permissible actions on their own land
Negative Easements: 4 categories
LASS:
Light
Air
Subjacent or lateral support
Stream of water from an artificial flow
Negative Easements: Creation
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
Termination of Easements: 8 Ways
NED CAMPER!
Necessity
Estoppel
Destruction
Condemnation Abandonment Merger Prescription Expiration Release
Termination of Easements: Necessity
Easements by necessity expire when the need that created them ends
Termination of Easements: Estoppel
Where servient owner reasonably relies on an easement holder’s conduct or representations indicating an intent to abandon the easement; non-use is insufficient
Termination of Easements: Destruction
(Of the servient tenement) - Unless destructions results from willful conduct of the servient owner
Termination of Easements: Condemnation
Condemnation of the servient estate by governmental eminent domain power will terminate the easement
Termination of Easements: Abandonment
Easement is terminated if its holder physically demonstrates an intent to permanently abandon it (mere words or non-use insufficient)
Termination of Easements: Merger
Easement terminates automatically if one person acquires title of both the easement and the servient land
Termination of Easements: Prescription
Servient owner may extinguish an easement by interfering with it using elements of AP
Termination of Easements: Expiration
If easement was established for a set term, or to expire upon stated conditions
Termination of Easements: Release
Easement holder can terminate the easement by giving a deed of release to the servient tenement owner
