Easements

A has an easement entitling her to cut across B's lawn to get more easily to her land. (1) What kind of easement dose A have? (2) Why? (3) Now A sells her parcel to Mr. X, with no mention of the easement. Does Mr. X enjoy the easement?

(1) Easement appurtenant. (2) 2 parcels are involved: A-dominant, B-servient. (3) Yes, it passes with the dominant parcel. The burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice of the easement.

(1) A grants B an easement to use A's private road to get to and from B's parcel, Blackacre. What does B have? (2) What is A's parcel known as? (3) Subsequently, B purchases the adjacent Greenacre, with its small marina. May B unilaterally expand the use of the easement to benefit Greenacre?

(1) Easement appurtenant. (2) Servient. (3) No unilateral expansion.

(1) A has an easement entitling her to swim in B's lake. What kind of easement does A have? (2) Why? (3) Is it transferable?

(1) Easement in gross. (2) Only 1 servient parcel. (3) No, it is personal to its holder.

(1) SafeSplash Swim School has an easement to use B's lake to give swim lessons. What kind of easement does SafeSplash have? (2) Why? (3) Is it transferable?

(1) Easement in gross. (2) Only 1 servient parcel. (3) Yes, it's commercial.

O conveys a portion of his 10-acre tract to A, with no means of access out except over a portion of O's remaining land. In response, the parties reduce to express writing their understanding that A enjoys a right of way over a part of O's remaining acreage. Thereafter, the city builds a public roadway affording A access out. (1) Is A's easement terminated? (2) Why?

(1) No. (2) It was reduced to writing (express grant).

A owns two lots. Lot 1 is hooked up to a sewer drain located on Lot 2. A sells Lot 1 to B, with no mention of B's right to continue to use the drain on A's remaining lot 2. For the court to imply an easement on B's behalf it would have to find:

(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 tenement's use and enjoyment.

Termination: Release (most common)

A release given by the easement holder to the servient land owner will terminate the easement. Does the release have to be in writing? Yes.

A grants B a right a way across A's land, so that B can more easily reach his land. B's land is benefited by the easement. In easement parlance, it is the dominant tenement. A's land is serving B's easement. It is the servient tenement. Notice that two parcels are involved. What does B have?

An easement appurtenant.

Creation of an Affirmative Easement: By Necessity

An easement by necessity will be implied when grantor conveys a portion of its land with no way out, except over some part of the grantor's remaining land.

Transferability: The Easement in Gross

An easement in gross is not transferable unless it is for commercial purposes.

Easements

An easement is a grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land. Some common examples of easements: (1) The right to lay utility lines on another's land; (2) The right of way over another's land; (3) The right to tap into a neighbor's drain.

Appurtenant or in Gross

An easement is either appurtenant to land or it is held in gross.

Creation of an Affirmative Easement: By Prescription

An easement may be acquired by analogy to adverse possession. Remember: C O A H: Continuous use for the given statutory period. Open and notorious use. Actual use that need not be exclusive. Hostile use (without the servient owner's permission). Note: Permission defeats the acquisition of an easement by prescription. An easement by prescription requires that the use be hostile.

Creation of an Affirmative Easement: By Grant

An easement to endure for more than one year must be in a writing that complies with the formal elements of a deed. Why? Statute of Frauds.

Termination: Condemnation

Condemnation of the servient estate by governmental eminent domain power will terminate the easement.

Termination: Destruction

Destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement.

Termination: Necessity

Easements created by necessity expire as soon as the necessity ends, unless the easement was reduced to an express grant.

Termination: Estoppel

Here, the servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement will no longer be enforced.

Scope

How is the scope of an easement determined? By the terms of or conditions that created it.

A owns 100 acres. She conveys two of those acres to B, right in the middle of A's remaining acreage. As a result, B is landlocked. What will the court do?

Imply an easement of right of way on B's behalf over some part of A's remaining acreage.

Easements are Affirmative or Negative: Affirmative

Most easements are affirmative. An affirmative easement is the right to go onto and do something on servient land.

Creation of a Negative Easement

Negative easements can only be created expressly, by a writing signed by the grantor. There is no natural or automatic right to a negative easement.

A tells B that A will no longer be using her right of way across B's parcel. In reasonable reliance, B builds a swimming pool on B's parcel, thereby depriving A of the easement. May A later enforce the easement?

No, A is estopped.

A has an easement of right away across B's parcel, to enable A to better reach her parcel. Later, A buys B's parcel. As a result, the easement ends. When complete unity of title is achieved, the easement is extinguished. Thereafter, if title is separated again, will the easement return?

No. For example, assuming now that A sells the parcel over which she once enjoyed the easement of right of way. The easement is not automatically reinstated. To create it, A would have to start from scratch.

Creation of an Affirmative Easement

Remember: P I N G Prescription Implication Necessity Grant

Transferability: The Easement Appurtenant

The appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance.

Appurtenant

The easement is appurtenant when it benefits its holder in his physical use or enjoyment of his property. How will you know when you've got an easement appurtenant? Two parcels of land must be involved: (1) A dominant tenement, which derives the benefit; and (2) A servient tenement, which bears the burden.

Termination: Merger

The easement is extinguished when title to the easement and title to the servient land become vested in the same person.

In Gross

The easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. Here, servient land is burdened. However, there is no benefited or dominant tenement. Some common examples of an easement in gross: (1) The right to place a billboard on another's lot. (2) The right to swim in another's pond. (3) The utility company's right to lay power lines on another's lot. What do these examples have in common? Servient land is burdened, but there is no dominant tenement.

Easements are Affirmative or Negative: Negative

The negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. Negative easements are generally recognized in only four categories: Remember L A S S: Light Air Support Stream water from an artificial flow. Note: A minority of states also allow a negative easement for scenic view.

Termination: Prescription

The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession. Remember C O A H: Continuous interference. Open and notorious. Actual. Hostile to the easement holder.

Termination

There are 8 ways to terminate an easement. Remember END CRAMP: Estoppel, Necessity, Destruction, Condemnation, Release, Abandonment, Merger, Prescription.

Creation of an Affirmative Easement: By Implication

This is also known as the easement implied from existing issue.

A has an easement of right of way across B's parcel. B erects a chain link fence on B's parcel, thereby precluding A from reaching it. With the sufficient passage of time, how might B extinguish A's easement?

Through prescription.

Termination: Abandonment

What must an easement holder show to terminate the easement by abandonment? Physical actions showing the easement holder's intent to never use the easement again. Note: Abandonment requires physical action by the easement holder. Example: A has a right of way across B's parcel. A erects a structure on A's parcel that precludes her from ever again reaching B's parcel. That is the sort of action to signify abandonment. By contrast, mere nonuse, or mere words, are insufficient to terminate an abandonment.