Week 5: Easements Terms

Question 1

Servitudes
Easements
Covenants

Answer 1

S: Right/obligation that “runs with the land” —automatically passed down
- affirmative = right to use another’s land for limited purpose
- negative = restrictions with what owners can do with their own land

E (affirmative) = restriction of property owner’s exclusion rights

C (negative) = voluntary restriction of use

Question 2

Ambiguous easements

Answer 2

1. Courts want them in writing and to be narrow—don’t want free riding
2. Preserve results for not recognizing unwritten easements
3. Awarding appurtenant easements:
   - increase social value
   - preserve value without having to negotiate
   - want people to benefit from the rights of other owners
4. Underdeveloped land, these are about gross negative easements

For in gross:
- specify that its ingress and egress “for one single family resident” with the specific party

Question 3

Unwritten easements

Answer 3

Work through EACH unwritten easement claim

• avoid by negotiating before you buy your land
• courts have to choose (a) keeping implied law theories narrow to channel bargaining but also (b) keeping rules broad and flexible to bail people out
• hard line to draw because want to foster a neighborly attitude
  (Being nice can lead to prescription and less niceness; being nasty can lead to prescription and less nastiness)

Question 4

Easements by estoppel elements

Answer 4

1. Permission from owner to use land
2. Foreseeable and reasonable reliance on continuation of permission (can be short time)
3. Changed position by claimant in reliance on continuation
4. Finding easement is necessary to prevent injustice

Question 5

Easements by/adverse use prescription

Answer 5

1. Actual possessions
2. Adverse use
3. Open and notorious
4. Not exclusive
5. Until SoL

Question 6

Easements implied by prior use

Answer 6

Parcel of land is divided or severed, and prior to severance:

1. Common owner (non-permission not relevant)
2. Quasi-easement
3. Necessity (lower than by nexessity)
4. Severance of common land

Question 7

Easements by necessity

Answer 7

Estate is severed and one part becomes landlocked, requiring a right of way over the part of severed estate to access public road

1. Common owner
2. At time of severance, dominant estate became landlocked
3. Necessity (cannot “impeach the grant” = landlock yourself

Question 8

Terminating easements

Answer 8

1. Release it by deed (user can ask to buy easement back from owner)
2. Espires
3. Defeasible fee = conditioned use
   - and defeasible easement
4. Merger = dom & serv become one
5. Adverse possession
6. Estoppel (permission given but this precludes suing)
7. Eminent domain & compensated

Question 9

Covenants v. Easements

Answer 9

Covenants
- cannot be in-gross
- must be a benefitted/burdened land
- circumstances changed (ex: house around you become high rises)

Negative easements
- can be held in-gross
- no changed circumstances

American courts cannot create negative easements by prescription because prescription requires notice
- exception: solar panels