Easements

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EASEMENTS DEFINED

Back 1

RIGHT TO USE OR LIMIT THE USE OF ANOTHER'S LAND

i. More permanent than a license
ii. Not revocable at the will of the owner
iii. Fall short of granting full possession of the land, but only right to perform specific acts
iv. Can be expressed or implied

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Appurtenant easement

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1. Benefits land owned by the holder of the easement
a. So will run with the land, regardless of whether servient estate is sold
b. Passes to any future owner of the dominant estate
2. Considered to be attached to servient land, and in a sense a part of it
3. Running with the land
a. Must be intended to run with land, be in writing, and owner of servient estate had notice when bought land
4. Land that receives the benefit of the easement, and to which the easement is appurtenant, is called the dominant tenement or dominant estate
5. Look to intent of parties

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Easement in Gross

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1. Benefits the holder of the easement
a. Benefits in a capacity as a person/party, not as a discrete parcel of land
2. No dominant tenement exists
3. Utilities are primary type of parties who own these
4. Look to intent of parties

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Affirmative Easements

Back 4

allow the holder of the easement a right to use land in some way

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Negative easement

Back 5

prevent land from being used in a certain manner… no automatic right to negative easements. They can only be created expressly

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"LASS" and negative easements

Back 6

you may acquire a negative easement for (L)ight, (A)ir, (S)upport, (S)treamwater from an artificial flow

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Profit aprendre easement

Back 7

Enter into a servient tenement and remove a part of it (such as gravel or timber)

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Express creation of Easement (Statute of Frauds)

Back 8

not required... just need the intent clearly manifest in the document to create it. This should be in writing under a statute of frauds because there is an interest clearly tied to the land, even though it is nonpossessory in nature

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Easement duration

Back 9

if listed without a time restriction, it is assumed that the intent was that the easement would exist for as long as the purpose the easement is meant to serve is available (you make an easement to take lumber, then cut it all down, or the ground is infertle. The easement is over because the purpose cannot be served)

Front 10

Express reservation

Back 10

when transferring land to another, an easement may be attached by the original owner to protect a personal interest in the parcel. Courts are divided if the original owner may create an easement for a third party

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Implied Easement

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"during the unity of title, an apparently permanent and obvious servitutde was imposed on one part of an estate in favor of another

Continuty

The easement is reasonably necessary for the fair enjoyment of the property it benefits

May require a showing of strict necessity in order for it to be upheld "

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quasi-easements (Easement implied by prior use)

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when a person owns to adjacent tracts of land and imposes a servitude on one tract for the benefit of the other. This can become a full easement when one of the tracts is conveyed. (Feldman prefers Easement implied by prior use)

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Creating an easement by way of necessity

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"Unity of ownership of dominant and servient estates.
Severance of unity of titel by a conceyance of one of the tracts
necessity of use of sevient estate at the time of the division to provide access to the dominant estate"

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Limitations of Easements

Back 14

limited to the amount of space for the purpose for which they are created. (a sixty foot wide driveway could be cut down considerably to 20 feet)

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Easement by prescription

Back 15

"may be established by use which is shown to have been continuous, uniterupted, visible, and adverse for a period of (X) years

to be adverse it is only necessary to proceed wtihout recognition of authority to permit or prohibit the use. Do not need to intend to violate owner’s right

Adverse possession is about possession. Prescription is about USE. Use it in the same manner and size as it was before. There has to be an understanding that the party adverse to the interest is using the property (light does not work like always)"

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Adverse public easement

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The public may obtain an easement for recreational purposes by using land without permission (Think Hey Arnold Baseball Field)

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Licensees to land

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If a person has entered under a parol license and expended money, or its equivalent in labor, in the execution of the license, the license becomes irrevocable. The licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining the structures or his rights under the license, and the license will continue for so long a time as the nature of the license calls for

Front 18

Easement by estoppel

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"The only way to get an easement through oral agreement to actually be an easement

1. Owner gives someone else permission to use his property in a particular way and licensee invests substantially in reasonable reliance on that permission, and revocation would work an injustice
a. Applies only if the reliance is reasonable and only if the licensor created the impression that the license would not be revoke or a reasonable licensee would so view the situation
"

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Getting out of Easement by estoppel

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the licensor has not deceived the licensee by revocation, put no fraud upon him, and just asserting a right of revocation that had been reserved to him by the terms of his permission

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Can one have an easement in their own land?

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Quasi-Easement. It is not a real easement. It is just the prior use.

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Grants

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When a quasi easement exists in the property that is sold, there is a grant of its use.

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Succession of Easement

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"A successor to the dominant cannot calim to have benefit of an easement to the successor to an servient without proving the initial easement. A (dominant) sells to C, B (servient) sells to D, C must prove that D has an easement on the property

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Direct conveyance of easement

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Create an easement to a 3rd party, then sell the property to another 3rd party, the easement stands. A gives easement rights to C, sells property to D

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Unity of Title

Back 24

In order to demonstrate an easement, you have to demonstrate that the prior properties were at one time

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Easement implied by necessity

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"Land should be put to use that is land locked

Strict necessity in some states.
Some states will deny access by road if there is acces to water travel"

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Requirements for easement

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"a. Unity of ownership
b. Severance
c. Necessity of use of servient estate at time of division and ownership to provide access to dominant estate
d. Necessity required to imply easement is strict necessity
i. Strict necessity is defined as absolute necessity such as where property is landlocked or otherwise inaccessible

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Driveways created by easements

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A driveway that provides access for a landlocked parcel cannot be used to park on. The easement can only be used for the same purpose as it was created for

Front 28

City subdivisions and right of exit (implicated easement)

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when a property has no road access, he has a right to reach the nearest and most necessary street in NY (but in most states it can be any road)

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Scope of an easement

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the portion conveyed does not , in and of itself, mean that an additional burden is imposed upon the servient estate. If the DEGREE of burden is increased this is not enough to deny use of the easement. (If you use it for residential use, or increase the amount of traffic... shifting from agricultural use...this is allowable so long as it has not be limited by the creation of the easement) It has to be a reasonable use of the easement and not overburden the servient estate

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Installation of gates

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could not figure out on summary judgement. Need to know the purpose of the easement and see if it is a reasonable use of the easement

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Material change to a property

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changing a causeway to a bridge materially altered the use of the property because it was SPECIFICALLY DEFINED, and it interfered with the use (water use for recreational vehicles.) It did not matter that the causeway could not be safely repaired. There should have been a building of a new causeway

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R3-K movement of easement

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"The owner of servient estate is entitled to make reasonable changes in the location or dimensions of an easement IF
It doesn’t lessen the utility of the easement,
increase the burdens of the owner of the easement,
OR,
frustrate the purpose for the easement"

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Common law movement of easement

Back 33

makes a distinction between prescriptive and express easement. A prescriptive easement can be modified by the owner of the servient estate, but an express easement cannot be moved UNILATERALLY by the owner of the servient estate NOR by the owner of the owner of the dominant estate.

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Estoppel and mistaken easement

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if an easement is written in the deed in one place, but for some reason (mistake) it is executed somewhere else, then estoppel cannot hold because the parties operated on the same assumption that was flawed. There is NO JUSTIFIABLE RELIANCE

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Creation of Affirmative Easement

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"PING
Prescription
Implication
Necessity
Grant"

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Easements in Gross

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When in gross, only the servient land is affected. Purely financial or personal gain
"""billboard on your property… eat beans and you will never have to pass gas"" That is gross
Right to swim
Right to place utility lines"

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Transferability of easements

Back 37

"Easement that is appurtenant is transferred automatically with the dominant tenement
Easement in gross is not transferrable unless for commercial purposes (very personal)"

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Easements for more than a year

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Must be in writing (A Grant)

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Implication

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"Easement implied from existing use
A owns two lots, lot 1 is hooked up to a sewer on lot 2, sells lot 1
Implied by a court if the previous use was apparent and the parties expected that it would survive division"

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Necessity

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In the case of a landlocked land…. When grantor purveys part of his land with no way out except over grantor's land

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Scope of an Easement

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Set by the terms and conditions that created it. Do not allow unilateral expansion of easement

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Termination of Easement

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"Easements created by necessity expire as soon as the necessity ends

Estoppel Doctrine

Written release

Abandonment- Easement holder shows by physical action the intent to never use the easement ever again

Prescription"

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Prescription

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By meeting the elements of adverse possession

"Servient owner extinguishes the easement by interferring with it by adverse possession
A has an easement of right of way across B's land. A never uses the easement, and it disappears after the adverse possession period"

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Merger Doctrine

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Unity of ownership… ends the easement when the title to the easement and title to the servient land when both become vested in the same person

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Estoppel as a means of termination

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When the servient owner materially changes position in reasonable reliance on the easement holder's assurances that the easement will not be enforced