Easements

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Easement Holder's Rights

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the right to use a tract of land (called the servient tenement) for a special purpose.

Hint 1

But has NO right to POSSESS and ENJOY the tract of land.

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Owner's Rights

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owner of the servient tenement continues to have the right of full possession and enjoyment subject only to the limitation that he CANNOT INTERFERE with the right of special use created in the easement holder.

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Easements are either appurtenant or in gross

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"Ew you're gross, no one likes you!"

Easement in Gross = No Dominant Tract of Land

Hint 3

"It takes two, baby, to make an easement ap-pur-tenant!"

Easement Appurtenant = Both a Servient and Dominant Tract of Land

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Easement in Gross

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The holder of an easement in gross has the right to use another’s land (the servient tenement) independent of her ownership or possession of another tract of land; i.e., there is no dominant tenement.

Hint 4

Easements in gross can be either:
(1) personal (e.g., O gives friend right to swim and boat on lake) or
(2) commercial (e.g., utility or railroad track easements).

Generally, an easement in gross is transferable only if the easement is for a commercial or economic purpose.

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Easements are either affirmative or negative

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Affirmative Easements
Affirmative easements entitle the holder to enter upon the servient tenement and make an affirmative use of it for such purposes as laying and maintaining utility lines, draining waters, and polluting the air over the servient estate. The right-of-way easement is another instance of an affirmative easement. Thus, an affirmative easement privileges the holder of the benefit to make a use of the servient estate that, absent the easement, would be an unlawful trespass or nuisance.

Hint 5

Negative Easements = L A S S
A negative easement does not grant to its owner the right to enter upon the servient tenement. It does, however, entitle the privilege holder to compel the possessor of the servient tenement to refrain from engaging in activity upon the servient tenement that, were it not for the existence of the easement, he would be privileged to do. Courts historically recognized negative easements only for LIGHT, AIR, subjacent or lateral SUPPORT, and for the flow of an artificial STREAM.
Today, a negative easement is simply a restrictive covenant.

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Creation of Easements = "P I N G"

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Prescription

Hint 6

Implication

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Necessity
An easement by necessity arises when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line.

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Grant or Express Reservation

An easement by reservation arises when the owner of a tract of land conveys title but expressly reserves the right to continue to use the tract for a special purpose after the conveyance.

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Party Wall & Common Driveway

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If a driveway is located partly on the property of each of two adjoining landowners, each landowner has a cross-easement for support in the driveway. Absent an express agreement, courts will treat a common driveway as belonging to each landowner to the extent that it rests upon her land. Courts will also imply mutual cross-easements for support, with the result that each party has the right to use the driveway, and neither party can unilaterally destroy it.

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Termination of an Easement = E N D C R A M P

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Estoppel

Hint 9

N

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Destruction of Servient Estate
If the easement is in a structure (e.g., a staircase), INVOLUNTARY destruction of the structure (e.g., by fire or flood) will extinguish the easement.
Voluntary destruction of the servient estate (e.g., tearing down a building to erect a new one) will NOT terminate an easement.

Back 10

Condemnation
Condemnation of the servient estate will terminate an easement. The easement holder may be entitled to compensation for the value lost.

Hint 10

Release
An easement may be terminated by a release given by the owner of the easement interest to the owner of the servient tenement. A release requires the concurrence of both owners and is, in effect, a conveyance. The release must be executed with all the formalities that are required for the valid creation of an easement.

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Statute of Frauds Requirement
If the easement interest that is being conveyed has a duration of greater than one year, it must be in writing in order to satisfy the Statute of Frauds. An oral release is ineffective, although it may become effective by estoppel.

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Release of Easement in Gross
The basic characteristic of an easement in gross is that unless it is for a commercial purpose, it is inalienable. However, an easement in gross can be released; i.e., can be conveyed to the owner of the servient tenement. This is an exception to the general characteristics of an easement in gross.

Hint 11

Release of Easement Appurtenant
The basic characteristic of an easement appurtenant is that it becomes, for the purpose of succession, an incident of possession of the dominant tenement. This basic characteristic requires that the easement interest not be conveyed independently of a conveyance of the dominant tenement. However, an easement appurtenant may be conveyed to the owner of the servient tenement without a conveyance (to the same grantee) of the dominant tenement. This is an exception to the general alienability characteristics of an easement appurtenant.

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Abandonment
It has become an established rule that an easement can be extinguished without conveyance where the owner of the privilege demonstrates by physical action an intention to permanently abandon the easement. To work as an abandonment, the owner must have manifested an intention never to make use of the easement again.

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Example of Abandonment

A owns Lot 6 and B owns Lot 7, which are immediately adjacent. A grants to B an easement across Lot 6. This easement is specifically located on the servient tenement and is a walkway. Subsequently, B constructs a house on Lot 7 that completely blocks his access to the walkway. By the physical action of constructing the house in such a way that access to the walkway (i.e., the easement) is denied, B has physically indicated an intent not to use the easement again. The easement is extinguished by abandonment.

Hint 12

1) Physical Act Required
An abandonment of an easement occurs when the easement holder physically manifests an intention to permanently abandon the easement. Such physical action brings about a termination of the easement by operation of law and therefore no writing is required; i.e., the Statute of Frauds need not be complied with.

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2) Mere Words Insufficient
The oral expressions of the owner of the easement that he does not intend to use the easement again (i.e., he wishes to abandon it), by themselves, are insufficient to constitute an abandonment of the easement. For words alone to operate as a termination, such expression will only be effective if it qualifies as a release; i.e., the Statute of Frauds must be complied with. Note, however, that oral expressions may be sufficient if accompanied by a long period of nonuse (see 3), infra).

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Mere Nonuse Insufficient
An easement is not terminated merely because it is not used for a long period by its owner. To terminate the easement, the nonuse must be combined with other evidence of intent to abandon it. Nonuse itself is not considered sufficient evidence of that intent.

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Merge (Unity of Ownership)
By definition, an easement is the right to use the lands of another for a special purpose. On this basis, the ownership of the easement and of the servient tenement must be in different persons. If ownership of the two comes together in one person, the easement is extinguished.

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Complete Unity Required
For an easement to be extinguished, there must be complete unity of ownership as between the interest held in the easement and that held in the servient tenement. In other words, if the holder of an easement acquires an interest in the servient tenement, the easement is extinguished only if he acquires an interest in the servient tenement of equal or greater duration than the duration of the easement privilege. Conversely, if the holder of the servient tenement acquires the easement interests, the title acquired must be equal to or greater than her interest or estate in the servient tenement. If there is incomplete acquisition of title, the easement will not be extinguished.

Hint 14

Example of Requirement for Complete Unity


A is the owner of the servient tenement in fee simple. B has an access easement across the servient tenement and the duration of the easement is in fee simple. A conveys a 10-year term tenancy in the servient tenement to B. There is no complete unity of ownership. The easement right is of longer duration than is the estate acquired by B in the servient tenement. Therefore, the easement is not extinguished.

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No Revival
If complete unity of title is acquired, the easement is extinguished. Even though there may be later separation, the easement will not be automatically revived.

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Example

A owns Lot 6, the servient tenement. B owns adjacent Lot 7. A grants to B the privilege of crossing Lot 6, i.e., grants an easement appurtenant to B. Assume A conveys Lot 6 to B in fee simple. The easement would be extinguished because B then holds both the easement and title to the servient tenement. If, thereafter, B conveys Lot 6 to C, the easement is not revived. Of course, it could be created anew.

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Prescription
An easement may be extinguished, as well as created, by prescription. Long continued possession and enjoyment of the servient tenement in a way that would indicate to the public that no easement right existed will end the easement right. Such long continued use works as a statute of limitations precluding the whole world, including the easement holder, from asserting that his privilege exists.

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The termination of an easement by prescription is fixed by analogy to the creation of an easement by prescription. The owner of the servient tenement must so interfere with the easement as to create a cause of action in favor of the easement holder. The interference must be open, notorious, continuous, and nonpermissive for the statutory period (e.g., 20 years).

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Easement Appurtenant

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Easement Appurtenant
An easement is deemed appurtenant when the right of special use benefits the holder of the easement in his physical use or enjoyment of another tract of land. For an easement appurtenant to exist, there must be two tracts of land. One is called the dominant tenement, which has the benefit of the easement. The second tract is the servient tenement, which is subject to the easement right. One consequence of appurtenance is that the benefit passes with transfers of the benefited land, regardless of whether the easement is mentioned in the conveyance.

Hint 17

1) Use and Enjoyment
Use and Enjoyment
In an easement appurtenant, the benefits to be realized by the easement must be directly beneficial to the possessor of the dominant tenement in his physical use and enjoyment of that tract of land. It is not sufficient that the easement makes use of the land more profitable.

Front 18

Easement must be directly beneficial to the possessor of the Dominant tenement - Example:
A owns Lot 6 and B owns adjacent Lot 7. A grants to B the right to use part of Lot 6 to mine coal. The right is not an easement appurtenant because the benefit granted is not related to B’s physical use and enjoyment of Lot 7.

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What has A done instead? = A has given B a license to come upon his land and mine coal.

Hint 18

What is a license?

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A personal revocable privilege to ENTER upon someone else's land.

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How is a License created?

Hint 19

It is a CONTRACT right.
It's created when someone tries to grant an easement ORALLY.
When landowner verbally grants someone the right to enter his land.

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How can it be terminated?

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It's a revocable right to enter land, thus the licensor can revoke at will.

Hint 20

However, if there is a written contract, licensor may lose the right to terminate at will, but still has the power to terminate (breach of contract).

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Two Circumstances When a License Can Become Irrevocable

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1) Estoppel Theory (Equitable Remedy)

Licensee must invest substantial amounts of money or labor in reliance on the license. If this happens the licensor is estopped to revoke. The license becomes an easement by estoppel which lasts until the holder receives sufficient benefit to reimburse him for his expenditures.

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2) Coupled with an Interest

License is irrevocable as long as the interest lasts. EX: a purchaser of chattel may enter seller's land to remove the chattel, and a FUTURE INTEREST HOLDER may enter and inspect land for waste.

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If the agreement is in writing but does not state that the parties are attempting to create an easement, the court will decide under the circumstances if an easement or a license has been created. Key factor is permanence...he more permanent the agreement, the more likely it's an easement.

Back 22

Easements are subject to the