W2 - Easements

Question 1

What is an easement and give examples

Answer 1

An easement is a non-possessory right to use (or enter) the land of another.

Examples:
Pipelines & wires
Access
Sightlines
Support easements
Drainage easements

Question 2

What is an affirmative easement?

Answer 2

Affirmative easements give the interest holder a right to do some act on land that someone else owns.
Note: These are the vast majority of all easements. E.g. the right to drive across your driveway, or the right to lay cable wires across your land.

Question 3

What is a negative easement?

Answer 3

Negative easements forbid one landowner from doing something on land that might harm a neighbor. (e.g., cannot develop the land commercially)

Question 4

What kind of negative easements are recognized in the US?

Answer 4

Water easements – a duty not to interfere with water flow to the dominant estate (but only if the dominant estate has some system that puts the water to use for power)
View easements – duty not to block a view
Solar easements – which protects acts to solar energy and amounts to a “don’t block my sun” easement.
Conservation easements – usually given to a gov’t or charity to protect open areas, scenic areas, etc.
Easements for Air and light – but only if expressly bargained for in a deed (never by implication).

Question 5

What is an easement apparentant?

Answer 5

An easement appurtenant gives the easement rights to whomever owns a parcel of land that the easement benefits

Question 6

What is an easement in gross?

Answer 6

An easement in gross gives the easement rights to some person – it isn’t dependent on ownership of land.

Question 7

What kind of easements are favoured by the courts?

Answer 7

easement appurtenant

Question 8

Do easements in gross have a dominant/subserviant tenant?

Answer 8

No

Question 9

What is a dominant tennant?

Answer 9

It is the property benefited by the easement
The appurtenant easement attaches to the dominant tenement and transfers when the prop changes hands.
Only easements appurtenant have dominant tenements

Question 10

What is a servant tennant?

Answer 10

It is the property burdened by the easement.
Both easements appurtenant and in gross have servient tenements because there’s always a burdened property

Question 11

Are easements in gross transferable?

Answer 11

yes

Question 12

What is an exclusive easement in gross?

Answer 12

It means that the person who owns the easement has exclusive rights to whatever benefit the easement provideds

Question 13

What are the 4 ways to create an easement?

Answer 13

Expressly Created – through a writing b/c the statute of frauds applies to interests in land, such as easements.
Implied By Prior Use – in certain situations, the law will imply that an easement was created
Implied By Necessity – if an easement is the only way to access land or get something done. (Absolute necessity required – not just convenience.)
Created By Prescription – earned by regular use, like adverse possession.

Question 14

In common law, can easements be made to befit a third party?

Answer 14

No. However, modern rule is to follow the grantor’s intent. If the intent is to benefit a third party, then it is permissable

Question 15

What is a license? Give example

Answer 15

A license is oral or written permission given by the land’s occupant allowing someone to do some act that would otherwise be a trespass.
Licenses are very common – allowing a plumber in your house, inviting guests over to dinner, etc

Question 16

What is the difference between licenses and easements?

Answer 16

Licenses are typically revocable, with some exceptions. Easements are not revocable.

Question 17

When does an easement by estoppel occur?

Answer 17

: An easement by estoppel (aka irrevocable license) may be found when the owner of property misleads or causes another to change the other’s position to their prejudice

Question 18

What is the difference between a lease and a licence?

Answer 18

Transferring possession is essential to a lease; an easement holder or a licensee has only the right to use.

Question 19

What are the 4 factors used to determine if a party interest is a lease or an easement?

Answer 19

uses permitted (the more the use of space is limited to a specific use, the more likely an easement);
the specificity of location (the more specific a location, the more likely a lease);
rent reserved (periodic payment may indicate a lease);
Duration (a lease is limited in time; easements are usually unlimited)

Question 20

What is an easement by prior use? is necessity needed in the majority rule?

Answer 20

An Easement by Prior use is an apparent and continuous use which the parties would reasonably expect to continue when the land is divided.
Courts will imply an easement when it is reasonably necessary (American rule; majority rule today)
But the English rule required strict necessity, which is the minority view in the US today.

Question 21

What are the 4 elements for an easement by prior use?

Answer 21

Initial unity of ownership (of the now dominant and servient estates).

Severance of the title to create the dominant and servient estates.

An existing (some prior use), apparent, and continuous use of one parcel for the benefit of the other parcel.

Reasonable necessity for that use. (Necessity helps impact the intent of the parties, which is why it is a requirement.)

Question 22

When is an implied easement/easement by prior use extinguished?

Answer 22

If the dominant parcel and the servient parcel come into the same ownership, the implied easement is extinguished

Question 23

What are the 4 elements for an easement of necessity for right of way?

Answer 23

Elements for implied easement by necessity for rights of way:

Unity of ownership of the alleged dominant and servient estates.

The right of way is a necessity, not a mere convenience (strict necessity required); AND

The necessity must exist at the time of the severance of the estate.

Question 24

Easements of prior use require ___ necessity whereas easements of necessity for right of way require ___ necessity.

Answer 24

reasonable necessity for prior use, strict necessity for necessity

Question 25

When do easements of necessity end?

Answer 25

When the necessity ends

Question 26

What are the majority and minority rules for when a necessity is strict necessity?

Answer 26

Majority rule: strict necessity means no other way out.
Ex. In 1999, a WI Court refused to created an easement by necessity because the owners had access to a public road on foot, down a steep cliff – even though it would have cost $700K to build a road down that cliff.

Minority rule: necessity will be found if another use would be inadequate (access by foot only), difficult (down a cliff), or costly (700K to build the driveway).

Question 27

What are the 2 differences between easements of necessity and prior use?

Answer 27

Easements by necessity apply only to rights of way – ingress and egress – to landlocked parcels.

Easements by necessity do NOT require that the use be in existence at the time of creation – that is, it need not be a prior use

Question 28

What are prescriptive easements?

Answer 28

Prescriptive easements are easements by adverse possession
Note: You cannot get a negative easement prescription. It can only be for an affirmative easement.

Two key tips for prescriptive easements:
A license = permission, so it’s not adverse
The SOL doesn’t begin to run until the dominant and servient estates are severed (until they are not under the same owner)

Question 29

What are the 4 elements for prescriptive easements?

Answer 29

The use must be adverse and hostile;
The use must be open and notorious;
The use must be continuous
For the statutory period.

Note: you also have to have actually used the right of way, so the actual element is there too, but courts don’t often list it. It’s a given

Question 30

For prescriptive easements, does the use have to be exclusive?

Answer 30

Not in the same way as total AP. the use can be shared with the dominant and servient estates, but it cannot be shared by others (the public, other express easement holders, etc.)

Question 31

What are the restraints upon the scope of an easement?

Answer 31

An easement holder may make such use of the easement that is reasonably necessary for the enjoyment of the dominant estate and not unreasonably burdensome to the servient estate.

Question 32

Can an easement be used in conjunction with a non-dominant estate?

Answer 32

No

Question 33

What is the majority rule for the misuse of an easement?

Answer 33

Misuse of an easement normally requires an injunction to prevent future misuses. Minority rule awards damages

Question 34

For each different type of easement, how does one locate where an easement is in effect?

Answer 34

For express easements, the terms of the document.
If the location is not expressly stated, then past usage (if any) can determine it – but sometimes courts have to get involved to determine its location.

For prior use and prescriptive easements, the location is fixed by the use made at severance (or the start of the prescriptive period).

For easements by necessity, the servient estate owner has a reasonable time to locate the easement – if the servient owner takes too long or locates it unreasonably, then the dominant owner can reasonably locate it.

Question 35

When can easement holders extend their easement?

Answer 35

Only if it is reasonably necessary

Question 36

What are the 2 rules about extending a prescriptive easement? give example

Answer 36

The use of a prescriptive easement once acquired must (1) be consistent with the general kind of use by which the easement was created AND (2) be consistent with what the servient owner would reasonably expect to lose by failing to interrupt the adverse use.

Ex. An easement established to allow the passage of livestock would not allow the passage of motor vehicles

Question 37

What are the 8 ways an easement may be terminated?

Answer 37

1. Release: These typically require a writing to comply with the Statute of Frauds.
2. Expiration: If the terms of the easement limit it by date or by some condition subsequent, then it ends on that date or on the occurrence of that event.
3. End of necessity (for easements by necessity)
4. Merger: Ends by merger if the easement owner later becomes the owner of the servient estate.
5. Estoppel: Can end if the servient owner reasonable relies to their detriment on statements made by the easement holder.
6. Abandonment (the most common way)
7. Prescription: If the servient owner wrongfully and physically prevents the easement from being used for the prescriptive period, then the easement terminates.
8. Condemnation: Gov’t exercises its eminent domain power.

Question 38

What is the abandonment rule and how is it established?

Answer 38

When the easement holder intends to abandon the easement, the easement terminates automatically (by operation of law).

How do you show evidence of intent to abandon?
Non-use of the easement (by itself) is not enough.
There must be some other acts that indicate (1) either a present intent to relinquish the easement OR (2) acts showing a purpose inconsistent with the easement’s future existence.