Easements Created By Implication

Front 1

Easements are not a _______(1)_________, so there is no ______(2)______, just a right to ________(3)______.

Back 1

(1) Fee Interest

(2) Possession Right

(3) Keep Using`

Front 2

Easements Created by Implication are different from Express Easements in this regard...

Back 2

No Writing

Front 3

Types of Easements Created by Implication

Back 3

1. Constructive Trust
2. Easement by Estoppel
3. Easement by Necessity
4. Easement by Prior Use
5. Prescriptive Easement

Front 4

Type of Easement Created by Implication

Easement by Estoppel

Back 4

A license to use land that has become irrevocable because the licensor has represented to the licensee that a certain use may be made of his land, and the licensee has relied to his detriment upon that promise (Detrimental Reliance)

Front 5

Easement by Estoppel

Elements

Back 5

Element 1: Landowner Consent: Permission by the original owner

Element 2: Detrimental Reliance by the Licensee that is Reasonable

Front 6

Easement by Estoppel

License to use land becomes __________ because the licensor (landowner) __________________ and the licensee ___________________.

Back 6

(1) Irrevocable

(2) Represents his permission

(3) Reasonably relies to his own detriment

Front 7

Easement by Estoppel

Three Requirements for Licensee's Behavior

Back 7

(1) Licensee must act in reliance

(2) Reliance must be made by investments in land

(3) Reliance on landowner must be reasonable

Front 8

For Easement by Estoppel, we must focus on

(1)

(2)

Back 8

(1) Landowner's Conduct
-- Did he consent (grant permission)?

(2) Licensee's Conduct
-- Did he rely on consent and was reliance reasonable?

Front 9

Element One of Easement by Estoppel

Landowner Consents

Two Forms

Back 9

Induces licensee to act

(1) Explicit --> Oral invitation (no writing)

(2) Implicit --> Acquiescence

Front 10

Landowner Consent

Acquiescence and Example

Back 10

Saw the licensee relying on their behavior and doing nothing about it

EX: Stand by and watch as the person uses the road everyday

Front 11

Element Two of Easement by Estoppel

Licensee Relies to his own Detriment

Back 11

Licensee acts in REASONABLE RELIANCE to his detriment by investing in property

Front 12

Types of Investments in Property which Satisfy Easement by Estoppel?

Back 12

Money, Time, Labor, Energy, etc.

Front 13

Easement by Estoppel

Where to attack a claim for easement by estoppel from a landowner's standpoint?

Back 13

Say the reliance was not reasonable!

Nothing I did should have made you thought you had permission!

Front 14

Result of Easement by Estoppel

Back 14

Original license is made irrevocable and last so long as its nature calls for (usually permanent)

Front 15

Easement by Estoppel

License remains irrevocable...

Back 15

So long as necessary to honor reasonable expectations of the licensee.

Front 16

Easement by Estoppel

Although it's generally held that easements by estoppel last as long as its nature calls for, it is likely to be...

Back 16

Permanent

Front 17

Easement by Estoppel

Impact of "As long as its nature calls for"

Back 17

Gives wiggle room to landowner if other ways of access become available.

Front 18

Lifeline of Easement by Estoppel

Back 18

"As long as its nature calls for"

Transferable: Will flow from owner to owner

Front 19

Easement by Estoppel is Transferable

Back 19

Next buyer of the house gets not only the house, but also the appurtenant easement to right of use of roadway.

Front 20

Easement by Estoppel

Competing Views

Back 20

1. MAJORITY: Recognizes easement by estoppel


2. MINORITY: Does not recognize easement by estoppel

Front 21

For exam, if you see Easement by Estoppel, argue for...

Back 21

Majority: Easement by Estoppel

Minority: Constructive Trust through Unjust Enrichment

Front 22

If you're in a minority jurisdiction, you can't argue for Easement by Estoppel

Back 22

Argue, instead, for Constructive Trust through Unjust Enrichment

Front 23

Easement by Implication

Unjust Enrichment + Constructive Trust

Back 23

Companion Doctrines, always come together

Doctrine is unjust enrichment, remedy is constructive trust

Front 24

Easement by Implication

Doctrine is ____________.

Remedy is _______________.

Back 24

(1) Unjust Enrichment

(2) Constructive Trust

Front 25

A finding of __________ creates a _____________.

Back 25

(1) Unjust Enrichment

(2) Constructive Trust

Front 26

Easement by Implication

Unjust Enrichment + Constructive Trust is Back-up Plan for

Back 26

Minority Jurisdictions where Easement by Estoppel is not available

Front 27

Easement by Implication

Unjust Enrichment Elements

Back 27

1. Benefit conferred on true owner

2. Knowledge of the benefit by true owner

3. Unjust under the circumstances to allow the true owner to retain the benefit

Front 28

Unjust Enrichment

Element 3: How is it unjust

Back 28

(1) Depends on facts and relationship of the parties
(a) KEY --> Did person with title somehow induce reliance?
(2) The nature of the true owner conduct/ nature of the relationship of the parties can determine this
(a) Mistake, fraud, quasi fraud, breach of trust or confidence.

Front 29

To prove unjust enrichment, you have...

Back 29

An uphill battle

Must be creative

Front 30

Remedy for Unjust Enrichment

Back 30

Constructive Trust

Front 31

Constructive Trust

Back 31

Long-Term Access (not permanent) or Money back for investment

Front 32

Constructive Trusts Create This

Back 32

A fictional relationship where the benefited party is considered the trustee/ true landowner who is then fictionally entrusted to handle the money on behalf of the un-benefited party.

Front 33

Constructive Trusts creates a fictional relationship where the ______(1)________ is considered the trustee who is then fictionally entrusted to handle the money on behalf of the _________(2)______.

Back 33

(1) Benefited Party

(2) Un-Benefited Party

Front 34

Unjust Enrichment: Race Case

Cabinors in this case are

Back 34

(1) Trustor

(2) Beneficiary

Front 35

Unjust Enrichment: Race Case

Taverner, then Word Paper Company, are

Back 35

Trustee

Front 36

Step 1: Cabiners pay $300,000.00 to Taverner, making them this

Back 36

Trustor

Front 37

Taverner is then entitled to the $300,000.00, which later ends up to be unjustly held by him

Back 37

Trustee

Front 38

Court rules this is a case of unjust enrichment, so now the cabiners become this

Back 38

Beneficiaries

Front 39

Under Unjust Enrichment, the Court has this

Back 39

Lots of flexibility in remedies, lots of discretion.

Front 40

RACE CASE:

Cabiners wanted long-term access through an ___________, but they were in a minority jurisdiction so the only remedy was __________.

Back 40

(1) Easement

(2) Unjust Enrichment

Front 41

Difference between unjust enrichment and easement

Remedies:

Back 41

(1) Easement: Long-Term Right of Access

(2) Constructive Trust: Get investments in property which are removable back, and get access for the Useful Lifetime of Property

Front 42

Remedies for a Constructive Trust involving Property

Back 42

(1) Investments made in the property which are removable

(2) Access for the useful lifetime of the property

Front 43

Remedies for a Constructive Trust involving Property

Can get investments made in the property, but only the ones which are ______(1)_______ to avoid ______________(2)_________

Back 43

(1) Removable

(2) Waste

Front 44

Remedies for a Constructive Trust involving Property

Useful Lifetime of the Property

Back 44

How long property last based on useful lifetime of the property (Race Case = 13 years)

Front 45

General rule of thumb with easements

Back 45

Run with the Land (Expressly Express Easements)

Front 46

Easements by Implication

Prescriptive Easements

Back 46

(1.) Actual Use (Not possession)
(2) Open & Notorious
(3) Continuous
(4) Adverse or Hostile
(5) For the Statutory Period
(6) Exclusivity not required

Front 47

Prescriptive Easement can be considered as

Back 47

Adverse Possession's Little Cousin

Front 48

Prescriptive Easement relies on __________ and ______________.

Back 48

Lack of permission and hostility

Front 49

Prescriptive Easement

You get the right to ______(1)______, but you do not get any ______(2)________!!

Back 49

(1) Continued Use

(2) Possesory Rights

Front 50

All easements grant a _________________, but not a _____________.

Back 50

(1) Right of use/access

(2) Possesory Right

Front 51

Adverse Possession v. Prescriptive Easement

Elements are almost all the same, except for...

Back 51

(1) Exclusivity: Not Required

(2) Actual Use (Not Actual Possession)

Front 52

Major Difference between Prescriptive Easements and Other Easements by Implication

Back 52

For Prescriptive Easements, there is no Permission

Front 53

Easements by Implication

If you see permission, then think about:

Back 53

(1) Easement by estoppel
(2) Acquiescence
(3) Estoppel
(4) Unjust Enrichment

Front 54

Easements by Implication

If you see a lack of permission, think about...

Back 54

Prescriptive Easement

Front 55

Key Component of Prescriptive Easements

Back 55

No Permission was granted

Front 56

TEST TIP: 15-20 years, think about...

Back 56

Prescriptive Easements

Front 57

Prescriptive Easement Element #1

Actual Use

Back 57

(1.) Must prove you’ve used the property
(i.) Scope of Use: Doesn’t need to be 100% clear cut specification of amount of space used, just a general outline.

Front 58

Prescriptive Easement Element #1 Actual Use

Scope of Use

Back 58

Doesn’t need to be 100% clear cut specification of amount of space used, just a general outline.

Front 59

Prescriptive Easement

For scope of use for Actual Use, you just need this.

Back 59

A general outline (not 100% clear cut)

Front 60

Prescriptive Easement Element #2

Open and Notorious

Back 60

Visible and Obvious

Front 61

Prescriptive Easement Element #2

Open and Notorious Element is essentially a ________________.

Back 61

Notice Requirement

Front 62

Prescriptive Easement Element #2 Open and Notorious

Notice Requirement

Back 62

Would put a reasonably diligent land owner on notice that someone is using their property!

Front 63

The open and notorious element for prescriptive easement asks would a ________(1)_________ be put on notice that someone is using their property

Back 63

(1) Reasonably Diligent Land Owner

Front 64

Examples of Open and Notorious Use

Back 64

(1) Building a garden

(2) Fishing

Front 65

Prescriptive Easement Element #3

Adverse (Hostility):

Back 65

No permission by landowner

Front 66

Adverse (Hostility)

Back 66

Really easy element to satisfy, just don’t talk about it with true owner

Law presumes hostility is satisfied

Front 67

Adversity (Hostility) is a really easy element to satisfy, all you have to do is ________(1)___________ because the law _________________.

Back 67

(1) Not talk to the true owner

(2) Presumes Hostility

Front 68

Key Presumption of Prescriptive Easement

Back 68

(1) Hostility is Presumed

Front 69

As a result of hostility being presumed, this is the outcome.

Back 69

Burden of Proof is on the True Owner to overcome presumption

Front 70

Burden of Proof in prescriptive easement is on the _____________.

Back 70

True Owner to show there was permission

Front 71

Prescriptive Easement

Did the True Owner expressly grant permission?

Back 71

If yes, then there’s no hostility

Front 72

Prescriptive Easement

Did the True Owner expressly deny permission?

Back 72

If yes, then there is hostility

Front 73

Prescriptive Easement

Was the owner Silent or is there ambiguity about permission being granted?

Back 73

If yes, hostility is presumed

Front 74

Prescriptive Easement

Important Note on Public Access' Impact on Hostility

Back 74

If the public can access the property, presumed permissible and no prescriptive easement

Front 75

If the public can access the property, presumed _____(1)_____ and no ______(1)_________

Back 75

(1) Permissible

(2) Prescriptive Easement

Front 76

Three Different Viewpoints on Prescriptive Easement

(1) Majority
(2) Two Minorities

Back 76

(1) Only considers true owner's state of mind, and it is presumed that there was no permission granted (no concern with trespasser)

(2) Looks to trespasser's mindset (in addition to lack of TO permission)
(i.) Good Faith Trespasser
(ii). Bad Faith Trespasser

Front 77

Prescriptive Easement

Whether in the majority jurisdiction or the minority, this is essential

Back 77

True Owner's lack of permission

Front 78

Prescriptive Easement

Minority #1

Back 78

Lack of Permission from true landowner
+
Good Faith Requirement -- Trespasser thought it was their property, did not realize it was not their land

Front 79

Prescriptive Easement

Minority #2

Back 79

Lack of Permission from True Land Owner
+
Bad Faith Requirement: Knew it wasn’t their property and purposely trespassed

Front 80

Prescriptive Easement Minority #1

Good Faith Requirement (+Lack of permission from true owner)

Back 80

Trespasser thought it was their property, did not realize it was not their land.

Front 81

Prescriptive Easement Minority #2

Bad Faith Requirement (+Lack of Permission from True Owner)

Back 81

Trespasser knew it wasn't their property and purposely trespassed

Front 82

Prescriptive Easement

Majority focuses solely on (1)

Minority focuses on (2) and (3)

Back 82

(1) True Owner's mindset

(2) True Owner's mindset

(3) Trespasser's mindset

Front 83

In the minority jurisdiction requiring bad faith for a prescriptive easement claim, this is the likely outcome.

Back 83

Most claims fail

-- That’s why states use this system because its to hard to prove

Front 84

Prescriptive Easement

Minority Rule for Neighbor

Back 84

For neighbors, there is an implied permission, which kills any claim for Prescriptive Easement

Assume neighbors using property of neighbor is done with implied permission.

Front 85

Impact of Neighbor's Implied Permission

Back 85

Greatly limits claims for Prescriptive Easement

Front 86

Prescriptive Easement Element #4

Continuous

Back 86

Use the land just as the true owner would (uninterrupted use)
(1.) Frequency of use as a true owner
(i.) Not 24/7, extremely flexible and almost always satisfied, seasonal use

(2.) Use land in manner consistent with way true owner would.

Front 87

Prescriptive Easement Element #4:

Continuous looks at whether the trespasser uses the land __________________________.

Back 87

As the true owner would (uninterrupted use)

Front 88

Prescriptive Easement Element #4:

Continuous use is all about this

Back 88

Uninterrupted Use

Front 89

Continuous use does not need to be ________(1)________, just ________________(2)______________

Back 89

(1) 24/7

(2) Consistent with the way the true owner would.

Front 90

Continuous Use Examples

Back 90

(1) 24/7

(2) Seasonal Use

(3) Whatever is reasonable use

Front 91

Prescriptive Easement Element #5

Back 91

Use for the Statutory Period

Front 92

Prescriptive Easement Element #5:

Use for the Statutory Period

Back 92

5 to 40 years

Differs from state to state

Tacking does apply (successive owners using in similar fashion)

Front 93

For the statutory period consideration, this does apply

Back 93

Tacking

Successive owners using in similar fashion count towards statutory period.

Front 94

Prescriptive Easement Element #6:

Exclusivity

Back 94

Exclusivity is not required

Front 95

Prescriptive Easement

NO exclusivity requirement

Back 95

Allows both true owner and easement person to use the property in question

Don’t need to show excluded the true owner, just shared access.

Front 96

Prescriptive Easement: No Exclusivity

Don’t need to show _____(1)_____, just _______(2)_____.

Back 96

(1) Exclusion of the true owner

(2) Shared Access with the owner

Front 97

Easements by Implication

Easements Implied by Prior Use Elements

Back 97

(1.) Common Ownership of land prior to severance

(2.) Prior Use

(3.) Necessary and Beneficial

Front 98

Application of Easements Implied by Prior Use

Can be argued for by both _________ and __________.

Back 98

(1) True Owner -- Wants to keep using his throughway

(2) New Resident -- Wants his way out

Both could likely want it!!

Front 99

Easements Implied by Prior Use

ALWAYS, ALWAYS, ALWAYS, DO THIS!!

Back 99

Consider grantor's intent v. claimant's interest v. societal interests

Front 100

Easements Implied by Prior use generally do this

Back 100

Run with the land (mainly because it's beneficial to the land use)

Front 101

Easements Implied by Prior Use

Element #1

Back 101

Common Ownership of land prior to severance

(1.) Someone who owns large tracts of land and sells off a portion(s) of it
(i.) Need transaction which divides property which was once held entirely by one of the parties in the transaction!

Front 102

Easements Implied by Prior Use

Common Ownership of land prior to severance requires this

Back 102

A transaction which divides property which was once held entirely by one of the parties

Front 103

Common Ownership Minority Rule

The one exception to the requirement for common ownership

Back 103

Statutes have removed need to have common ownership if the necessity is dire enough to force an easement across property, but this must be bought from your neighbor

Front 104

Under the Common Ownership Minority Rule Exception, there is no longer a need for common ownership so long as the __________(1)__________ to force an easement ________(2)________, but this must be _______(3)____________.

Back 104

(1) Necessity is Dire Enough

(2) Across a neighbor's property

(3) Purchased from your Neighbor

Front 105

Easements Implied by Prior Use Element #2

Prior Use

Back 105

Before conveyance to the buyer, there was use on the retained or sold land

Front 106

Prior Use Element for Easements Implied by Prior Use

Before transfer, there must be...

Back 106

(1) Use of one part of the land
(2) that benefits another part of the land
(3) that is
(i.) obvious
(ii.) apparent and continuous
(iii.) and permanent

Front 107

Prior Use Element for Easements Implied by Prior Use -- Must be all Three

Prior to Transfer, there must be use of one part of the land that benefits another part of the land that is ______(1)______, ______(2)_______, and ________(3)__________.

Back 107

(1) Obvious

(2) Apparent and Continuous

(3) Permanent

Front 108

Prior Use Element

Before transfer, there must be use of one part of the land that benefits another part of the land that is OBVIOUS

Back 108

You should have known that they (buyer or seller) would need the access

Important for notice!

Front 109

Prior Use Element

Before transfer, there must be use of one part of the land that benefits another part of the land that is APPARENT AND CONTINUOUS

Back 109

Happening all the time (you could have discovered it upon reasonable inspection)

Front 110

In regards to the apparent and continuous element of Prior Use, the court determines that the prior use is _________(1) ________ and could have been _________(2)___________.

Back 110

(1) Happening all the time

(2) Discovered upon reasonable inspection

Front 111

Third Requirement for Prior Use to be Satisfied

Back 111

Permanent

Front 112

For Evidence of Prior Use, Prior Use makes this element much easier to meet.

Back 112

Necessary & Beneficial element

Front 113

Easements Implied by Prior Use Element #3

Necessary and Beneficial to Enjoyment of Land

Back 113

Necessity means reasonably necessary or reasonably convenient

Essentially asks if it is not granted how hard would it be to function on the property in the absence of the easement?

Front 114

Necessary and Beneficial to Enjoyment of Land

Essentially asks how hard would it be to function on the property in the _________________?

Back 114

Absence of the Easement

Front 115

Necessary and Beneficial to Enjoyment of land

The Standard itself is generally a _____(1)_______, and easy as hell to meet especially when you are the ________(2)___.

Back 115

(1) a very flexible concept

(2) Buyer

Front 116

Necessary and Beneficial to Enjoyment of Land

if you have really good evidence of ______(1)______, less need for showing of _______(2)______

Back 116

(1) Prior Use

(2) Necessity

Front 117

Necessary and Beneficial to Enjoyment of Land

Evidence Required

Back 117

(1) Even luxuries, not necessities, can be included (i.e., I just want to use your property to access the beach)

(2) Even if you have other options for access, if it’s reasonably convenient it is protected as an easement

Front 118

Evidence Required for Necessary and Beneficial to Enjoyment of Land to be satisfied include

(1)

(2)

Back 118

(1) Even luxuries, not necessities (use your property to get to the beach)

(2) Reasonably convenient method, even though there are other options

Front 119

Necessary and Beneficial to Enjoyment of Land

Are luxuries protected?

Back 119

Yes, luxuries, not just necessities, are included

i.e., I just want to use your property to access the beach

Front 120

Necessary and Beneficial to Enjoyment of Land

What if you have other options?

Back 120

if it’s reasonably convenient it is protected as an easement, even if you have other options

Front 121

Two Standards of Necessary and Beneficial

Back 121

Based on who’s seeking it

Easement by Reservation (Seller)

Easement by Grant (Buyer)

Front 122

The standards for necessary and beneficial are driven by this consideration

Back 122

Who is seeking it

Front 123

Necessary and Beneficial Standard #1

Easement by Reservation

Back 123

Easement sought by the seller -- Need to show higher degree of necessity

Seller wants easement on land sold to keep using the property, but doesn't include it in the writing

Front 124

For an Easement by Reservation, _______(1)______ is seeking the easement, and therefore _________(2)_________.

Back 124

(1) The Seller

(2) He needs to show higher degree of necessity

Front 125

Necessary and Beneficial Standard #1

Easement by Grant

Back 125

Easement sought by the buyer -- Need to show a lesser degree of necessity

Buyer wants an easement on land of grantor to use the grantor’s property for the benefit of land, but it’s not included in writing

Front 126

For an easement by grant, _________(1)_________ is seeking the easement, and therefore ________(2)___________.

Back 126

(1) The Buyer

(2) He needs to show lesser degree of necessity

Front 127

Implied Easement by Prior Use

Burden of Proof

Back 127

Burden of Proof is on the person who does not have the writing (usually the buyer)

Front 128

Burden of Proof for implied easements by prior use is this party

Back 128

The person who does not have the writing (usually the buyer)

Front 129

Scope of an Easement for Prior Use

Back 129

Scope of use of an Easement is narrow, and it generally does not grow or get bigger

Scope of Easement is based on prior use, and can’t be extended to new parcels if it wasn’t anticipated at time of grant.

Front 130

Scope of use of an Easement is _______(1)_______, and it generally ________(2)_______

Back 130

(1) Narrow

(2) Does not grow or get bigger

Front 131

If you're the owner of an easement for a specific purpose and right of way, it must be used for that purpose!!

Back 131

Not a right of way to get access to other areas

Front 132

For an Easement, it can only be used in this manner

Back 132

The manner it was intended for by the grant

I.e, I give you an easement to get to the main road... You can't use that easement to get to another road or location not included in the grant that you could have gotten to without using the easement

Front 133

The scope of an easement is based on prior use, and can’t be ______(1)_________ if it wasn’t anticipated at time of grant.

Back 133

(1) Extended to new parcels

Front 134

Theory of Easement by Implied Use

Back 134

Someone sold off a portion of their property with the thought they would be able to use the easement, if there wasn’t that understanding they wouldn’t have sold it

It is so obvious the easement should have been existing that they never even wrote it down.

Front 135

Easements by Implication

Easements by Necessity Elements

Back 135

(1) Common Grantor

(2) Necessity

Front 136

Classic Fact Pattern for Easement by Necessity

Back 136

Landlocked parcel of land without a way to get on or off of the property

Front 137

For an easement by necessity, look for...

Back 137

A separation of the dominate estate into a landlocked situation

Front 138

Easement by Necessity

Must be no _______(1)________ and ___________(2)__________ except through grantor’s land.

Back 138

(1) Legally entitled right off landlocked property

(2) No alternative means to get off the property

Front 139

Easement by Necessity Element #1


Common Grantor

Back 139

Need to have transaction which divides property which was once held entirely by one of the parties in the transaction!!

Front 140

Easement by Necessity Element #2


Necessity

Back 140

No effective use of the property can be made unless this easement exists.

Measured at the time of severance.

Front 141

Easement by Necessity

Length of Easement

Back 141

Easement by Necessity Lasts as Long as the Necessity Lasts

Front 142

Easement by Necessity

When is necessity determined?

Back 142

Measured at the time of severance.

Front 143

Easement by Necessity

What to look for?

Back 143

Landlocked parcel of land and legal access to public road only through the grantors property

No legal access in or out of your property, then you have a right to demand the GRANTOR give you that right to use their property.

Front 144

Easement by Necessity

Find This!!

Back 144

Land surrounded by “strangers” (Other private landowners)

Front 145

KEY: If you are landlocked, but you have nice neighbors who give you permission (license) but no legal permission...

Back 145

Then you should have an easement by necessity even though other access is available (but not owned).

Front 146

Easement by Necessity

One Addition in Some States

Back 146

Most Severe Definition of Necessity

If there is no way on or off your property but through your neighbor’s land, they have to sell you an easement

Front 147

Easement by Necessity

In some states, if there is no way off your property but through your neighbor's land, then this is the outcome.

Back 147

Neighbor has to sell you an easement

Removes need to have common grantor if the necessity is dire enough, but this must be bought from the other land owner.

Front 148

Easement by Necessity

In some states, if the situation is dire enough, there is a removal of the need for ______________ and the _______________.

Back 148

(1) Common Grantor

(2) Neighbor must sell it to you