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31 Cards in this Set
- Front
- Back
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Creation of Easements: Basics
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An easement is a nonpossessory interest one person has in the property that another person possesses
It is a right to use another's land for a specific purpose The easement holder and the landowner both may use the same area of land, but the landowner's use may not unreasonably interfere with easement holder's use of the easement for its intended purposes No particular words of art are necessary to create an easement. Any words showing an intention to create an easement will suffice |
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Creation of Easements: Basics, Ex.
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O owns Blackacre. She records a deed with herself naming herself the grantee of an easement for a road over Blackacre (from an adjacent property that she also owns). Is the easement valid? No, one cannot create an easement in one's own property.
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Creation of Easements: Terminology
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An easement may be an easement in gross (personal easement) or an easement appurtenant
An easement in gross benefits a person (having no dominant estate), while an easement appurtenant benefits the owner or possessor of a particular parcel of land (having a dominant estate). Property burdened by the easement is called the servient estate. The land benefited by the easement is the dominant estate *An easement in gross has no dominant estate, because it benefits a particular person and not the owner of a particular property *Once the dominant estate has been identified in the easement deed, it has been identified for all time. Remember, easements are identified at the time of its execution and delivery |
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Creation of Easements: Terminology, Cont...
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Affirmative easements give the holder the right to go onto the servient estate for a particular purpose
A negative easement gives the holder the right to prevent the possessor of the servient estate from doing some act on the servient estate In the case of negative easements, the servient estate has the the burden to not do something |
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Creation of Easements: Terminology, Ex.
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O deeds an easement over Blackacre to E, the owner of adjacent Whiteacre. E rents Whiteacre to T. Does T have the right to enforce the use given in the deed? Yes, because it is the holder of the benefit of the easement that has standing to enforce its terms
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Profit a Prendre & License(s)
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A profit is the right to enter another's land, without liability for trespass, and remove minerals or other natural resources constituting a natural part of the land
When a landowner permits another person to use his property, but the permission is revocable or terminable at the landowner's will, the user has a license A license needs no writing or consideration, can be implied, usually from conduct or custom, and so long as the user stays within its terms, the license gives it user immunity from a suit in trespass A license is revocable at will. However, licenses can become irrevocable through the doctrine of estoppel, and so become indistinguishable from easements *An express easement that fails for some reason becomes a license |
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Easements by Estoppel & Irrevocable Licenses
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If an express easement somehow becomes ineffective, the owner of the servient estate may otherwise authorize the owner of the dominant estate to use the burdened property for a specific purpose, and a license has in effect been created.
*However, in some situations a court will enforce the license as either an easement by estoppel or an irrevocable license |
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Easements by Estoppel & Irrevocable Licenses: Cont...
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To have an easement by estoppel or an irrevocable license three elements must be present:
1) The owner of the servient estate consents to the dominant estate holder's use of the servient estate; 2) The servient estate owner knows or should know the dominant estate owner will materially change his position, believing the permissive use will not be revoked; and, 3) The dominant estate holder, reasonably believing the permission will continue, substantially changes his position by investing in improvements on either servient or the dominant estate *The dominant owner's reliance must be justifiable |
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Easements Implied from Prior Use: Basics
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Arise when a use was in place at a time a single parcel of land was severed or divided into two adjoining parcels, leaving one parcel benefitting the other in some way, even though the seller and purchaser did not discuss or even think of it when they bought and sold the land
Ex. O owned two adjoining lots. He sold one to meg. A driveway and a sewer line ran from Meg's house to the street. After the sale, part of the driveway and part of the sewer line ran over O's lot. The deed conveying the lot to Meg did not mention the driveway or the sewer line. Does meg have a right to continue using the driveway or sewer line? Meg's situation must satisfy all the elements |
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Easements Implied from Prior Use: Elements
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All of the following elements must be present for an easement implied from prior use:
1) The unity of ownership is severed 2) The use was in place before the severance 3) The use was visible or apparent at the time of severance; and, 4) The ease is necessary for the enjoyment of the dominant estate |
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Easements Implied from Prior Use: Cont...
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The common owner must have engaged in the use just before the severance occurred, no matter how long pre-existing.
A common definition of reasonable necessity is "reasonably necessary for the fair enjoyment" of the dominant estate |
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Easements Implied by Necessity: Basics
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An easement implied for establishing a right-of-way for landlocked property
*Presumes that the parties to the landlocking transaction could not have intended not to include a right-of-way onto the land |
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Easements Implied by Necessity: Elements
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The elements are as follows:
1) A common owner severed the property; 2) The necessity for egress and ingress existed at the time of the severance; and, 3) Ingress and egress are strictly necessary for the landlocked parcel The easement implied by necessity requires there has been a common owner who must have conveyed part of the property to another person and in severing the property caused one of the parcels to become landlocked. The severance must cause the dominant estate to be landlocked. |
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Easements Implied by Necessity: Cont...
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The party seeking the easement must show the easement is strictly necessary
This implied easement lasts only so long as the necessity lasts. Once a new road is built or a new way is available, the easement ends In regards to locating the easement, generally, the servient estate owner has the first opportunity to locate the easement, having due regard for dominant estate holder's situation |
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Easements Implied by Necessity: Ex.
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O carves a land-locked parcel out of a trackless wilderness parcel and conveys the parcel to E. How is E's way of necessity different from an easement implied from prior use? A way of necessity need not be in existence at the time it is created
A deed from O to E land-locks E's land, but at the time E has an alternate route off her property that is blocked years later after E has sold her property and its title has come into E1's hands. May E1 assert a way of necessity? Yes: any subsequent owner of E's land may do so and, when doing so, is not subject to a statute of limitations. *So long as the necessity (of whatever degree) would have been present at the delivery of the O-to-E deed, the way of necessity may lie dormant in a chain of title until needed |
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Prescriptive Easements: Basics
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A person can gain an easement by prescription by long-continued adverse use
Essentially, substitute the elements of adverse possession and consider it adverse use |
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Prescriptive Easements: Elements
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1) Actual Use
2) Open and Notorious Use 3) Hostile and Adverse Use 4) Continuous and Uninterrupted Use 5) Exclusive Use 6) Prescriptive Period * Generally the time to gain an easement of prescription is the same as a jurisdiction's statute of limitations period for adverse possession |
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Assignabilty of Easements: Basics
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Most easements are assignable. Some are not.
Assignable means the easement can be sold, gifted, devised, inherited, or otherwise conveyed *The major factor determining the assignability of an easement is whether the easement is an easement in gross or appurtenant |
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Assignability of Easements: Appurtenant Easements
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Appurtenant easements run with land: Whoever possesses the dominant estate (by purchase, gift, devise, or inheritance) has the right to use the easement over the servient estate
A person conveying the dominant estate loses her easement rights to the person to whom it is conveyed. Likewise the servient estate reamins burdened with the easement no matter who owns the servient estate. Moreover, an easement appurtenant is implicitly assigned with the dominant estate, whether or not the deed mentions it |
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Assignability of Easements: Easements in Gross
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An easement in gross benefits a person whether or not he owns a particular parcel of land. It lacks a dominant estate
*There are some difference for commercial easements in gross |
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Divisibility and Apportionment: Appurtenant Easements
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The holder of an appurtenant easement, by subdividing and selling parcels of the dominant estate, transfers the easement with each parcel
Each resulting parcel becomes a dominant estate and the owner enjoys the easement over the servient estate so long as the several dominant estate owners do not overburden the servient estate |
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Divisibility of Apportionment: Easements in Gross
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Easements in gross that are not assignable obviously are not divisible or apportionable, either
However, in some jurisdictions, commercial easements in gross are assignable *Also note, that when two or more persons inherit or otherwise share the exclusive right to an easement, at least one court has concluded the multiple owners must act with one voice |
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Scope of Easements: Basics
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In regards to scope, the general rule is that the holder may make such use of the easement reasonably necessary for the enjoyment of the dominant estate and not unreasonably burdensome to the servient estate
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Scope of Easements: Location
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The location of an easement must be identified and described at its inception. Once the location is established, the easement owner must reamin with the located easement
The easement owner's use of the servient estate outside the boundaries of the easement, even for the same purposes authorized in the easement is a trespass |
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Scope of Easements: Location, Cont...
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If an easement is expressly located, the terms of its grant or reservation control. If the location is unspecified, usage can generally establish its location
The general rule is that if the location cannot be ascertained from its deed or other document, the servient estate owner can within a reasonable time locate the easement If the servient estate does not locate the easement or if the proposed location is unreasonable, the dominant estate holder (or holder of an easement in gross) can locate the easement, having due regard for the convenience of the servient estate owner |
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Scope of Easements: Location, Cont...
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Once an easement is located, it is forever located
*Some jurisdictions permit the servient estate owner to move the easement at the servient owner's expense as long as moving the easement does not inconvenience the dominant estate Ex. A utility company owns an easement to place poles and wires over property. The easement to place poles over property does not give the utility company the right to move the wires underground |
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Scope of Easements: Intensity of Use
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The general rule is that the easement holder can use the easement as long as the use is reasonably necessary for the dominant estate and does not overburden the servient estate, has both flexibility and uncertainty
Courts often consider the original parties intent, and when doing so, courts presume the parties intended the scope of the easement would evolve to accomodate reasonably foreseeable changes in the surrounding area in society |
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Scope of Easements: No Benefit Allowed to Nondominant Property
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An easement appurtenant may benefit only the dominant estate.
It cannot benefit the adjoining party, even if the owner of the dominant estate also owns the adjoining property, and even if the adjoining property is used in a manner integrated with activity with the dominant estate |
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Scope of Easements: No Benefit Allowed to Nondominant Property, Ex.
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Wilson owns land he wants to develop into a residential subdivision. He would like access to Main Street. Wilson discovers an adjoining lot owner that has an easement appurtenant over Jack's land for access to Main Street. Wilson buys the lot. Can Wilson use the easement over Jack's land to get to Main Street?
Wilson can use the easement to benefit his newly acquired lot, but not to benefit his adjoining land: Wilson, his workers, and his prospective purchasers cannot get from the back property to Main Street by going over the newly acquired lot |
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Scope Easements: Improvements, Maintenance, & Repair
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An easement holder (the dominant estate holder) has the right to improve the easement as long as the improvements promote the use of the easement, are within its scope, and do not unreasonably burden the servient estate owner's use or enjoyment of her property
Conversely, the easement holder has the (default) duty to maintain and repair the easement and any improvements placed on it, as well as liability for negligent repairs, for slip and fall events on the easement, and for injury to the servient estate done in the course of fulfilling this duty |
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Termination of Easements: 10 Ways
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1) By the Terms of the Grant
- The easement expires automatically according to the express terms of the grant or reservation 2) Purpose for Easement Ends - An easement terminates when the purpose for the easement ends 3) Merger - Once a person gains concurrent ownership of both the dominant estate and the servient estate, the estates merge and the easement disappears 4) Forfeiture for Misuse - An extraordinary remedy. Typically an injunction halting the misuse is issued 5) Release - The easement holder by deed can transfer part or all of the easement to the servient estate owner. This transfer is called a release and must be in writing to satisfy the Statute of Frauds 6) Abandonment - 2 elements; intent to abandon and subsequent abandonment 7) Estoppel 8) Prescription - The servient estate owner must use the easement in a manner adverse to the easement holder's right 9) Recording Acts - The easement is an interest in property is subject to a state's recording acts 10) Eminent Domain |
