Property Easements

Front 1

Easement

Back 1

Non-possessory interest in land involving a right of use.

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Easement appurtenant vs Easement in gross

Back 2

Easement appurtenant directly benefits use and enjoyment of a specific piece of land: burdened (servient) estate and benefitted (dominant) estate.

Easement in gross has no dominant estate. Classic example is utility easement.

Front 3

3 types of easements

Back 3

Express easement
Easement by implication
Easement by prescription

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Express easement

Back 4

Express grant of easement to someone else or reservation of an easement when land is sold.

Must comply with SOF and deed formalities. In writing, signed by holder of servient estate, executed like a deed. If less than a year, doesn't require writing.

Front 5

Easement by implication

Back 5

1) Previous use by a common owner that is continuous, apparent (open/obvious) and reasonably necessary OR

2) Absolute right of access- property is landlocked. Servient estate owner can choose reasonable easement location

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Easement by prescription

[like adverse possession, 4 reqs]

Back 6

1) Use adverse to owner.

2) Use continuous and uninterrupted for statutory period. Season use okay if appropriate. Assume MBE is 20 years. TX ONLY: 10 years.

3) Use visible and notorious, or with owner's knowledge.

4) Use without owner's permission (grant of permission, even oral, destroys hostility)

Front 7

Transfer of easement benefit

Back 7

Appurtenant: Goes automatically with dominant estate (whether or not mentioned in conveyance). It can't be transferred separately.

In gross: Can always transfer commercial; can't transfer personal ones.

TX: In gross can't be transferred unless easement language allows [ except for conservation easements]

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Transfer of easement burden

Back 8

Always binding on subsequent holders of servient estates, even if not in deeds (provided subsequent holder had notice of easement).

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Easement use controlled by easement terms.

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If easement silent, then 2 presumptions:

1) Easement perpetual unless otherwise stated

2) Use presumed is reasonable development of dominant estate (reasonably contemplated by parties when easement was created)

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Easement be used to benefit property besides the dominant estate = excessive use!

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Remedy is to enjoin use, not terminate easement.

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Who has obligation to keep easement in repair (and right to go on servient estate to do so)?

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Easement holder. Must make reasonable restoration of servient estate after repairs.

Servient estate holder has no repair obligation unless easement specifies.

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Situations where easement terminates (outside of easement terms)

1) Unity of ownership (merger): easement's non-revivable
2) Valid release compliant with SOF and deed formalities
3) Abandonment via physical act on property showing such intent (non-use is not abandonment)

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4) Estoppel (representation of relinquishment by dominant estate holder AND change in reliance by servient estate holder)
5) Termination by Prescription: servient estate owner stops use and keep it stopped for statutory period
6) End of necessity; no implied easement for light or air

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Profits

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Right to go on land and remove a natural resource.

Implied easement to go on land. If they ask about this, use easement rules.