Property: Easements

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Easement

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A nonpossessory interest to a right to use the land of another person.

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Types of Easements

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1. Easement Appurtenant
2. Easement in Gross

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Express Grant

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An easement created by an express written instrument signed by the grantor, which satisfies the statute of frauds. The conveyed parcel is the dominant tenement.

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Express Reservation

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Created when a grantor expressly reserves an easement in a conveyance of title to a parcel of land. The property that is conveyed to is the servient tenement.

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Easement Implied from Prior Use

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When an owner of land subject to a quasi-easement severs and conveys the quasi-dominant tenement to another party, an easement for the continuance of an open, apparent, and continuous use which is reasonably necessary for the beneficial enjoyment of the dominant parcel.

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Elements: Easement Implied from Prior Use

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1. Common Owner

2. Separation of Title

3. Apparent & Continuous Prior Use

4. Continuance of Use is Reasonably Necessary

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Common Owner

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Both retained and conveyed parcels of land were held under one title by a common owner.

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Separation of Title

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The use for which the easement is claimed must have existed prior to the separation of title. Use must be known or knowable at the time of the severance of title.

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Prior Use is Open/Apparent

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The prior use must have been open, apparent, and continuous which demonstrates a permanence sufficient to warrant the inference that the parties intended for the use to continue.

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Actual Knowledge of Use

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Servient tenant knows or has reason to know of a prior existing use. The use is sufficiently obvious or apparent to support the inference that the servient tenant had notice of the use.

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Apparent Use

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Visibility of use is not necessary for finding a use to be apparent; appearance and visibility are not synonymous. Prior use made apparent by physical adaptations of premises is a basis for chargeable knowledge of prior use. The fact that plumbing is hidden does not negate its character as apparent by faucets.

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Inquiry Notice from Adaptations:

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Existing use is apparent upon reasonably prudent investigation warranted by inquiry notice arising from apparent facts which suggests the existence of a prior continuous use.

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Continuous

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Continuous use implies permanence. To infer that prior use supports finding an easement by implication, the parties must have knowledge of prior use or such knowledge was possible.

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Continuance of the Use is Necessary

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The continuance of the use is necessary for the enjoyment and use of the dominant parcel.

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Reasonably Necessary

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If use of the land without the easement is possible, but requires disproportionate effort and expense, then an easement may still be implied by necessity alone

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Strictly Necessary

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A use must be strictly necessary in order for a grantor to acquire an easement by implied reservation.

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Easement Implied by Necessity

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An easement may be implied by necessity because the separation of title by a common owner who conveys part of his land and retains the other portion renders one of the parcels inaccessible.

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Elements: Easement Implied by Necessity

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1. Common Owner

2. Separation of Title

3. Necessity Results from Severance

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Easement by Estoppel

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If an owner of land permitted another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked, and the user substantially changes position in reasonable reliance upon that belief, then the owner is estopped from denying the easement.

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Implied Permission

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Permission to use the land does not have to explicit; it may be implied.

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Change in Position

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An investment in improvements on either the servient estate or to other land of the investor will trigger the application of the rule.

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Foreseeable Reasonable Belief

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The conduct of the land owner understood in light of the surrounding circumstances would foreseeably create a reasonable belief.

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Easement by Prescription (OH Rule)

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Easement by prescription may granted when a claimant can show that an open and notorious adverse use was continuous for the required statutory period of time of 21 years.

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Elements: Easement by Prescription

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1. Adverse Use

2. Open and Notorious

3. Continuous

4. Statutory Period

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Adverse Use

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Use must be without permission and inconsistent with the servient estate’s owner. Permissive use cannot ripen into a claim of an easement by prescription.

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Open

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The owner must know or should have known about the adverse use.

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Continuous

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The owner did not object to the adverse use.

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Statutory Period

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OH is 21 years

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Acquiescence

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An act of omission where the owner does not object. Owner is aware that the use is not permitted. The acquiescence gives rise to implied consent. Failure to object amounts to an implied consent/license. An owner who fails to object to an open and adverse use that is continuous for the statutory period will have implicitly consented to that use. Any form of objection, e.g., a letter of notice, is generally sufficient to defeat a claim for an easement by prescription.

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Permission

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An affirmative act where the owner communicates to the adverse user license to use the land. If an owner gives permission for another party for a particular use, a license is created. Under the specified circumstances, the license will be deemed irrevocable, which would amount to an easement by estoppel.