Real Property - Easements (And Adverse Possession)

Front 1

Affirmative Easement

Back 1

The grant of a nonposessory property interest/right entitling its holder to go onto another's land (the servient tenement) for certain purposes.

Front 2

Negative Easement

Back 2

The grant of a nonposessory property interest/right entitling its holder to prevent the servient landowner from doing something that would otherwise be permissible.
- Recognized in 4 categories: light, air, support, stream water from an artificial flow.
- Can only be created expressly, by writing signed by the grantor. There's no automatic right.

Front 3

Dominant Tenement

Back 3

Property that derives benefit from easement's existence.

Front 4

Servient Tenement

Back 4

Property that bears the burden of an easement.
(Easement is appurtenant to B's dominant tenement)

Front 5

Appurtenant Easement

Back 5

Nonposessory property interest that benefits holder in his physical use or enjoyment of the property.
- TWO PARCELS must be involved.

Front 6

Easement In Gross

Back 6

It confers upon its holder only some personal or pecuniary advantage not related to his use or enjoyment of his land.
- Servient land is burdened, however there is no benefited or dominant tenement.
- ONLY ONE PARCEL is involved.

Front 7

Transferability of Easements

Back 7

- Appurtenant easement passes automatically with the dominant tenement, regardless of whether it is mentioned in the conveyance.
- Burden of easement appurtenant also passes automatically with the servient estate, unless the new owner is a BFP without notice of the easement.
- Easement in gross is not transferable unless it is for commercial purposes.

Front 8

Creation of an Affirmative Easement
- First 2 requirements

Back 8

(PING)
- PRESCRIPTION – easement may be acquired by satisfying elements of adverse possession (COAH, without the servient owner’s consent. Permission defeats the acquisition of an easement by prescription, which requires use be hostile.)
- IMPLICATION – easement implied from existing use. Court will find this if: (1) the previous use was apparent and (2) the parties expected that the use would survive division because it is reasonably necessary to the dominant land’s use and enjoyment.

Front 9

Creation of an Affirmative Easement
- last 2 requirements

Back 9

- NECESSITY – the landlocked setting.
1. easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out except over some part of grantor’s remaining land.
- GRANT – easement to endure for more than a year must be in writing that complies with the formal elements of a deed b/c of statute of frauds.

Front 10

Scope of an easement is determined by:

Back 10

The terms of the grant or the conditions that created it.
- Basic change in the nature of use (scope) of an easement is NOT ALLOWED (unilateral expansion of an easement is not allowed).

Front 11

Termination of an Easement
(first 4 ways)

Back 11

(END CRAMP)
- ESTOPPEL – servient owner materially changes position in reasonable reliance on the easement holder’s assurances that easement will no longer be in force.
- NECESSITY – expires when necessity ends. But if created by express grant, won’t automatically end once the need ends.
- DESTRUCTION of the servient land, other than through the willful conduct of the servient owner will terminate the easement.
- CONDEMNATION of the servient estate by eminent domain will terminate the easement.

Front 12

Termination of an Easement
- last 4 ways

Back 12

- RELEASE – a written release, given by the easement holder to the servient owner.
- ABANDONMENT – the easement holder must demonstrate by physical action the intent to never use the easement again. (Mere nonuse or mere words are insufficient to terminate by abandonment).
- MERGER – easement is extinguished when title to the easement and title to the servient land become vested in the same person.
- PRESCRIPTION – the servient owner may extinguish the easement by interfering with it in accordance with the elements of AP. Interference must be (COAH).

Front 13

Adverse Possession

Back 13

Possession for a statutorily prescribed period of time can, if certain elements are met, ripen into title. For possession to ripen, title must be:
Elements: (COAH)

Front 14

Adverse Possession
- Elements

Back 14

(COAH)
i. Continuous (uninterrupted for given statutory period)
ii. Open and Notorious (usual owner would make under the circumstances)
iii. Actual and Exclusive (literal—can’t be symbolic or a letter)
iv. Hostile (possessor doesn’t have the true owner’s consent to be there)
* Possessor’s subjective state of mind is irrelevant.

Front 15

Tacking

Back 15

One adverse possessor may tack on to his time with the land his predecessor’s time, so long as there is privity which is satisfied by any nonhostile nexus (liberally construed) such as blood, contract, deed, will.
Not allowed when there’s been an ouster.

Front 16

Adverse Possession and people with disabilities

Back 16

SoL will run against true owner who is afflicted by a disability at the start of the adverse possession (will not apply if person wasn’t suffering from disability at the start).