Easements Created By Express Agreement

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Express Easements Created by Express Agreement

Essentially, means this!!

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It's in writing

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How Express Easements are created

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Deeds

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Express Easements are created by deeds and signed, normally, _____________

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Only by the grantor

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What's the Preferred Method of Creating an Easement, by implication or express?

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Express Easement because it's in writing!!

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Question that Drives Essay Question for Express Easements

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Is it:

(1) Appurtenant
OR
(2) In Gross

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Express Easements

When in doubt of whether it's appurtenant or in gross, the presumption is...

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Appurtenant

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What is an Appurtenant Easement?

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An Easement that Runs with the Land

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Appurtenant Easements do this

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Run with the Land: Attaches to land and burdens or benefits current and successor owners

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An Appurtenant Easement is intended to do this:

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Benefits the owner of another parcel of land.

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Result of an Appurtenant Easement

Two Classifications

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(1) The benefited parcel is called the dominate estate

(2) The burdened parcel is called the servient estate.

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Appurtenant Easements ______(1) ______ and burdens or benefits ________(2)________

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(1) Attaches to Land

(2) Current and Successor Owners

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We only are concerned with the distinction between appurtenant and in gross easements when _____________.

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The easement is express (in writing)

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How to determine if the express easement is appurtenant (runs with the land)?

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Answer 4 questions

3 Questions for the burdened side

1 Question for the benefited side

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Where do we start when determining whether as express easement is appurtenant?

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Start with the burdened side, for if there is no burden, there is no benefit

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When determining whether an easement is appurtenant or in gross, start with the _____(1)___, for if there is no _____(2)____, there is no _____(3)__________

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(1) Burdened Side

(2) Burden

(3) Benefit

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There are _____(1)____ to determine if an easement is appurtenant (runs with the land), or in gross (doesn't run with the land), ____(2)__ are on the burdened side, and ___(3)__ is on the benefited side

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(1) 4 Questions

(2) 3

(3) 1

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3 Questions to ask of Burdened Side

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(1) Is there a writing?

(2) Does the grantor intend it to run (at time of grant)?

(3) Is there notice?

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1 Question to Ask Benefited Side

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(1) Does the grantor intend the easement to run (at time of the grant)?

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Appurtenant Easement (Intended to Run) Element #1

Writing

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(1) Ideally in a deed, but can be on a napkin!!

(2) Required writing is the original writing (from original owners) creating the easement
(i.) Easement does not have to be included in the subsequent deeds to new buyers/owners, it can be referred to.

(3) Does not actually need to be recorded! But helps when it is

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Writing Requirement

What is the required writing?

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The original writing (from original owners) creating the easement

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Writing Requirement

Where does the writing need to be

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Nowhere Specific

Ideally in a deed, but can be on a napkin

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Writing Requirement

Does the easement have to be included in all subsequent deeds?

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Easement does not have to be included in the subsequent deeds to new buyers/owners, it can be referred to.

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Writing Requirement

Easement does not have to be included in the _____(1)______ to new ____(2)_______, it can be referred to.

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(1) subsequent deeds

(2) New buyers/owners

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Writing Requirement

Does the writing need to be recorded?

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NO!! But it helps when it is

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Appurtenant Easement Element #2

Was it intended to run by the grantor at the time of the grant?

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Usual answer and presumption is yes!

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Intent by the Grantor that it Runs?

What is evidence?

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(1) Expressly stated

(2) Implied by circumstances

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Grantor's Intent that is runs?

Important in making determination is looking at Appurtenant Language

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Appurtenant Language
(1.) If you see “heirs & assigns” in deed language, think appurtenant easement because it is intended to run with the land

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Appurtenant Language


If you see these words in the deed language, think appurtenant easement because it is intended to run with the land

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“heirs & assigns”

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Intent by the Grantor that it Runs?

What if original grantor says nothing about intent?

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Presumption that the easement is intended to run

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Rationale for Presumption of Appurtenant Easement

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limits amount of people with easements over the land (presumption against in gross easements)

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Intent by the Grantor that it Runs?

What do courts do when the language in deed is ambiguous?

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Look to circumstances and to policy considerations.

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Intent by Grantor when it runs: Language is Ambiguous

Court more likely to view it as appurtenant when:

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The easement has little or no utility separate from ownership of neighboring land, and is useful to anyone who owns the parcel of land benefited by the easement.

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Courts are more likely to find grantors intent that the easement run (appurtenant easements) when the easement has _______________(1)_____________, and is_____________(2)_______________.

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(1) Little or no utility separate from ownership of neighboring land

(2) is useful to anyone who owns the parcel of land benefited by the easement.

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More likely to be found an in gross easment when the easement on the servient estate would be useful ________(1)____________, it is likely gross because it does not __________(2)____________.

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(1) Useful even if separate from the neighboring (dominant) estate

(2) impact the usefulness of the dominant estate

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Intent by Grantor when it runs: Language is Ambiguous

Court more likely to view it as in gross when:

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Easement on the servient estate would be useful even if separate from the neighboring (dominant) estate, it is likely gross because it does not impact the usefulness of the dominant estate

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Appurtenant Easement Element #3

NOTICE

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The most important element

The question is always whether the owner of the burdened estate knew or should have known that the parcel was burdened

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Appurtenant Easement

Most important element

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NOTICE!!

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Appurtenant Easement

Why is notice most important?

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The owner of the burdened estate must have either known or should have known that the parcel was burdened

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Three Types of Notice

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(1) Actual

(2) Inquiry

(3) Record/Notice

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Types of Notice

Actual Notice

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(1) Buyer of burdened estate actually knew of burden
i. State of Mind Analysis: Did buyer “in fact” know of easement or was he told about it?

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Actual Notice focuses on ____________________.

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Burdened Buyer's State of Mind

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Actual Notice Question

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Did buyer burdened by easement “in fact” know of easement or was he told about it?

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Types of Notice

Inquiry Notice

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(1) Physical condition of the property reveals easement
(i.) Visible signs from observing the property suggests that a reasonable buyer should investigate further whether there is an easement
1. A road, cable lines, red flag of sewers, etc.

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Inquiry Notice Relies on the Burdened Buyer's observation of _______________.

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Physical conditions which reveals an easement

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Inquiry Notice

____(1)______ from observing the property suggests that a ____(2)_________ should investigate further whether there is an easement

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(1) Visible Signs

(2) Reasonable Buyer

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Examples of conditions likely to satisfy inquiry notice

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A road, cable lines, red flag of sewers, etc.

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Types of Notice

Record/Constructive Notice

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Recorded the deed: If recorded, you should find it by doing record search
(i.) You don’t have a legal obligation to record, but if you do record it, you ensure there is at the very least constructive notice
(A.) If you didn't find it, but you should have, then you will be charged with notice.

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Recording a deed is a great way to do this...

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Ensure constructive notice and protect easements intended to run

Buyer of burdened estate is constructively put on notice

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Record Notice General Principle

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If recorded, there is implied notice because a reasonable buyer will do a title search.

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Record Notice

Is there a legal obligation to Record?

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NO: but if you do record it, you ensure there is at the very least constructive notice

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What is a person records the easement on their land but the other party doesn't research?

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If you didn't find it, but you should have, then you will be charged with notice.

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Jurisdictional Split Regarding Record Notice

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50%: Only need to research current owner and land you intend to purchase

50%: Need to research the current owner and all his properties which he owned at the time of the original conveyance to buyer for deed outs and see which restrictions/easements/covenants were included.

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Jurisdictional Split Regarding Record Notice

More Lack 50%

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Only need to research current owner and land you intend to purchase

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Jurisdictional Split Regarding Record Notice

More Stringent 50%

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Need to research current owner and all his other properties which he owned at the time of the conveyance to the new buyer for deed outs and see which restrictions/easements/covenants were included.

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Under the more stringent 50% jurisdiction regarding record notice, not only does the buyer have to research the current owner and restrictions on your land, but also __________________

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All other properties he owned at the time of the conveyance to you.

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What are you looking for when researching record?

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Looking for deeds out in which restrictions (easements or covenants) on the land were included.

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Record Notice Example:
Alice owns two properties at the same time (Blackacre and Whiteacre). She Sells Whiteacre to Charlie and had earlier sold Blackacre to Billy

What is procedure in More Laxed 50% for Charlie?

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Charlie only needs to search Alice’s title to Whiteacre

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Record Notice Example:
Alice owns two properties at the same time (Blackacre and Whiteacre). She Sells Whiteacre to Charlie and had earlier sold Blackacre to Billy

What is procedure in More Stringest 50% for Charlie?

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Charlie needs to search Alice’s title to Whiteacre and the Blackacre to look for any covenants or easements.

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Only ask 1 Question for Benefit Side

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Grantor’s INTENT for the Benefit to run with the land?

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One Question for the Benefit Side

Did the Grantor Intend for the Benefit to Run

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Did the grantor intend to burden all successive owners with burden on the land for a long-term

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When asking whether grantor intended the benefit to run (on the dominant side), we are really asking whether the grantor intended to ________________________________.

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burden all successive owners of their land with burden on the land for a long-term

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If you satisfy all 4 Questions, what is the result?

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Appurtenant Easement [Intended to Run with the Land]

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Characteristics of Appurtenant Easement in Dominant Estate

** Remember Dominant Estate Characteristics, asshle!**

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(1) Presumed to Sub-Dividable (unless Express Language to the contrary)

(2) Always transferable

(3) Not severable from the land

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Characteristics of Appurtenant Easements

Is usually this

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Sub-dividable (unless language to the contrary)

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Characteristics of Appurtenant Easement

Appurtenant Easements in the dominant estate can be __________________, unless there is express language which says this is not intended.

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(1) Divided among multiple new users

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Characteristics of Appurtenant Easement

Is always This

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Transferable

Passes with the dominate estate whenever the dominate estate is transferred to a new owner.

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Appurtenant Easements always _________(1)___________ whenever the dominant estate is transferred to a new owner

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Passes with the Dominant Estate

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Characteristics of Appurtenant Easement

Is never this

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Severable from the land

Anyone who is entitled to use the land can use it

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Characteristics of Appurtenant Easements: Not Severable from the land

Rule applies even the dominant estate is ______________.

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Subdivided into parcels.

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Appurtenant Easements

You can’t sell the property without ___________________.

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The easement attached (you can't retain the benefit once you sell the land)

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Characteristics of Appurtenant Easements: Not Severable from the land

Anyone who is ______________ can _____________.

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(1) Entitled to the Land

(2) Gets to use the easement

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Appurtenant Easements cannot be ________(1)________ by the original benefited party when ___________(2)______.

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(1) Retained

(2) Sell the land

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Appurtenant Easement is part of this

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Bundled Package of Property Rights, can't be unbundled.

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Appurtenant Easement is not Severable

An owner of the _______(1)________ who sells the land cannot retain the benefit of the servitude while giving up the land because it is attached, but the benefit must still exist, so it is ____________(2)____________.

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(1) Dominant (benefited) estate

(2) Transferred along to the next owner

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Easement in Gross

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An easement that attaches a particular right to an individual rather than to the property itself.

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An easement in gross is an easement that attaches a particular right to an __________(1)______ rather than to the _______(2)__________.

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(1) Individual

(2) Property Itself

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Easement in Gross is similar to ___________, except it is _________________.

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(1) License

(2) Irrevocable while dominant estate is the owner

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Example of an In Gross Easement

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(1) Telephone Pole
(2) Utility Wires
(3) Bill-boards
(4) A right of way to use my fishing pond that I grant as nonrevocable to Jim McCabe (by name)

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In-Gross easement is essentially this

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Personal and Not intended to run with (attach to) the land

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An in-gross easement is designed to deliver a _________, and is not intended to _________(1)____________.

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(1) Personal Benefit to the landowner

(2) Benefit the land forever

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In Gross Easements do not do this

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Attach to the land

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In Gross Easements create a _______(1)________ to use the ________(2)________.

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(1) a personal right

(2) servient estate

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In Gross Easements are severable from the land because they are assigned to a _____(1)_____ and have no ______(2)________.

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(1) A person

(2) Impact on enjoyment of property

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In Gross Easement

What happens if beneficiary sells his land?

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Benefit does not transfer to successive buyers because it is a personal easement

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In Gross Easements are all about ___________ granted among land owners that benefit a particular person with access.

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(1) Personal Rights

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What happens if the burdened party sells his property, but the benefited party stays?

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The burden will run with the land, until the benefited party sells his land or transfers it.

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For In Gross Easements, the ______(1)____ runs with the land as long as the benefited party retains ownership.

As soon as the benefited party sells, the _____(2)____ he had is abandoned.

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(1) Burden

(2) Benefit

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Example of only burden running with the land for an in-gross easement.

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Next burdened owner still needs to allow the light pole to stay as long as the owner of the light pole is the one holding the personal benefit

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Transferability of In Gross Easements

Old Rule

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In Gross Easements cannot be transferred

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Transferability of In Gross Easements

Courts are now more lenient, and allow in gross easements to be transferred when _________________.

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Tied to a Commercial Use

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Two Categories of Dividability of In Gross Easements

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(1) Personal In Gross Easements

(2) Commercial in Gross Easements

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Two Categories of Commerical In Gross Easements

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(1) Exclusive

(2) Non-Exclusive

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Dividability of Exclusive Commercial In Gross Easements

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Can be divided by person with the easement

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Dividability of Non-Exclusive Commercial In Gross Easements

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Cannot be divided without permission from the grantor

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Rationale for not allowing non-exclusive commercial in gross easements to be divided

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If lots of businesses share the non-exclusive commercial in gross easements, you can’t divide the piece you have because it's already divided.

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Transferability of Personal In Gross Easements

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Possible to be transferable (still not intended to run) for in gross easements among individuals, but only if the grantor intended it so.

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Transferability of Personal In Gross Easements

Possible to be transferable with grantors intent, but will run out when the benefited party does this.

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Sells his interest in the land

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In Gross Easements

Severability

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Can be severed from the land

Not attached to particular parcel of land and there is no dominant estate.

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An In gross easements can be severed from the land because it is _________(1)______________ to a particular parcel of land and there is no ________(2)____________

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(1) Not attached

(2) Dominant Estate

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Dominant Estate in In-Gross Easements

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Do not exist

It's a benefit that attaches to a person, not the land.