PROPERTY II

In order to determine whether a deed intended to convey fee simple title or an easement, following factors need to be considered:

1. Amount of consideration, 2. The particularity of the description of the property conveyed, 3. The limitation upon the use of the property, 4. The type of interest that best serves the manifested purpose of the parties, 5. The particularity of the wording used in the conveyance document, 6. To whom the property was accessed and who paid the taxes on the property, and 7. How the parties to the conveyance, or heirs or assigns have treated the property.

How an Express Easement is Created (Creation) - WIDES - ACRONYM

1. Created in writing that satisfies the Statute of Frauds, 2. Identifies the parties, 3. Describes the servient land and dominant land (If any), 4. Describes the exact location of the easement on the servient land, 5. States the purpose for which easement may be used.

In question related to covenant, condition and restriction, follows facts are needed to be considered:

1. Is it wholly arbitrary or unreasonable? 2. Does it violate fundamental public policy? 3. Does it impose a burden on the use of affected land that far outweighs any benefit?

3 elements required for an implied easement by prior existing use:

1. Severance (split) of title to land held in common ownership, 2. An existing, apparent, and continuous use of one parcel for the benefit of another at the time of severance, 3. Reasonably necessary for that use at the time of severance (convenience and beneficial for the use and enjoyment of the property)

Reasonable restraint on alienation are permissible. What are the factors?

1. The one imposing the restraint has an interest in the property, 2. The restraint is of limited duration, 3. The restraint serves a worthwhile purpose, 4. The restraint will not often be evoked, 5. The number of persons affected is small.

In determining the intent of the parties, the courts will look at:

1. The relationship between the grantor of easement and grantee (More personal relation = less likely parties intend the easement to be assignable) 2. The degree to which assignability of the easement increases the burden on the servient estate either by increasing its use or decreasing its value (Greater burden = less likely that the owner of the servient estate intended the easement to be assignable) 3. Consideration paid for the easement (More $$ paid = easement might be sold) 4. The degree to which the use of the easement is temporary and personal (If use is temporary and personal = the parties intended the easement to be non-assignable).

In considering the intent of the parties, the following factors needs to be considered:

1. Whether the easement is granted or reserved? Reserved easements are interpreted more restrictively. 2. The amount of consideration that original beneficiary of the easement gave for easement: Substantial consideration favors the beneficiary 3. The prior use of the land on which easement is now located: Continuation of use by the parties 4. The subsequent conduct of parties: An immediate use after granting easement looks as an acceptance.

Easement by Necessity

2 elements: 1. Severance of title to land held in common ownership, 2. Traditionally, "strict necessity" for the easement at the time of severance that is landlocked parcel (However Restatement requires only "reasonably necessity" or "rights necessary to reasonable enjoyment of the land...." unless facts show that the parties had contrary intent).

Easement in gross

An easement in gross is an incorporeal, non possessory right to the use of another's land, but it is a mere personal interest. Easement in gross do not attach to and benefit a particular parcel of land. They may be personal to the easement owner. An easement in gross can be transferred by sale if the easement is commercial in nature.

Succession of Easement in Gross

An easement in gross will not pass when the owner of easement sells his/her land. In order to pass easement in gross to successors, the easement must be assigned.

Easement

An easement is non possessory interest in land that have no right of ownership. An easement is an interest in land in possession of another which: a) Entitles its holder to some limited use or enjoyment of the another's land. b) entitles him to protection as against third persons from interference in such use or enjoyment, c) is not subject to the will of the possessor of the land, d) is not a normal incident of the possession of any land possessed by the owner of any interest, and e) is capable of creation by conveyance (from one owner to another)

Extinguishment

An easement will be extinguished if it is misused and it is possible to separate and distinguish between authorized and non authorized use.

Transfer of Servient Estate

Any transfer of title to the servient estate usually transfers the burden of the easement. It does not apply: 1. To bona fide purchasers who did not has actual or constructive notice - easement is extinguished. 2. The owner of dominant estate agrees to the release of the easement.

Misuse

Any use of easement beyond dominant estate is a misuse. If an appurtenant easement benefits its owner in the use of particular parcel of land (dominant estate), any extension of the easement to the other parcel is a misuse of the easement.

Appurtenant Easement

Appurtenant Easement attach to and benefit a particular parcel of land. The parcel is called dominant estate. It automatically transfers with the sale of the property/ land. It runs with the land. When dominant estate is transferred, any easement appurtenant to it automatically passes with it.

Commercial Easements

Commercial Easements are assignable and transferable.

Easement in Gross (English - Common law/ Majority, and American law - Minority)

Common Law/ Majority do not recognize Easement in gross. However, In American Law (Minority), affirmative easement in gross are fairly common.

Merger

Conduct of both the easement owner and servient estate together will work to extinguish an easement. The lesser rights are swallowed up by the greater rights.

Termiantion of Easement

Easement can be terminated by: 1. Expressly, 2. Merger

Classification of Easement

Easements are classified as: a) Affirmative Easement b) Negative Easement

Classification of Easement

Easements are classified as: a) Appurtenant Easement b) Easement in gross

Exception

Exception retains for grantor a "preexisting interest" in a descried geographical part of the property or recognizes a previously existing property right in a third party. Retaining some geographic portion of the land.

Estoppel

Extinguishment by estoppel like Extinguishment through merger require action by both parties to an easement. Estoppel operates when the servient owner , reasonably relying on the actions of the easement owner engages in conduct inconsistent with the continuance of the easement.

Succession of Servient Estate

If the successor of the servient estate purchase the servient estate without the notice of the easement, the easement will be extinguished and new owner will not be subject to the burden of the easement. Notice may be actual or inquiry or constructive (Recorded in the deed).

Maintenance and Repair

In the absence of express writing, the easement owner (dominant estate) have a duty to make necessary repairs so that it doesn't interfere with servient owner's use and enjoyment of property. Similarly, the easement owner (dominant estate) must not unreasonably increase burden on servient estate. The owner of the servient estate can use his property in whatever manner he chooses, as long as he does not hinder the use and enjoyment of the easement. The owner of the servient estate has a duty to refrain from interfering with easement owner's enjoyment of her rights.

Affirmative Easement

It can be reserved by someone selling land reserving the right to cross it to reach his land. Allows the holder of the easement to do things, which would not be permissible if the easement did not exist. (for example use the road across to get to your property).

Types of Negative Easement

It has to be created expressly. 1. Light 2. Air 3. Lateral support 4. Flow of artificial stream 5. Scenic view (Minority jurisdiction)

Easement by Necessity

It is a non express easement. It is a right of way that arises strongly in a landlocked parcel of land. When a person conveys property with no means of access except over land retained by grantor or in possession of stranger, the grantee's need for right of way easement is deemed to be absolute.

Profit (aka profit a prendre)

It is a right to take something off another person's land that is part of the land or product of the land. Example: crops, timber, minerals, fish etc. The rules applicable to easements generally apply to profits.

License

It is the permission to go to the land belonging to the licensor,a nd are very common. Example: UPS delivering packages, plumber coming to home for repairs. License can be oral or in writing. A license is generally revocable at the will of the licensor.

Relocation of easement

Majority Rule: (Traditional/ Common Law) Once the location of the easement is fixed, it cannot be moved unilaterally without the consent of owners of both servient and dominant estates. Minority Rule: (Restatement) Once the location of the easement is fixed, it can be unilaterally relocated by the servient owner, as long as relocation provides the dominant estate similar benefits to the original easement, doesn not burden use and enjoyment of easement or frustrate the purpose for which easement was created. (Expense to be paid by servient owner)

Commercial and Non Commercial Easements (Modern - Restatement)

Modern - Restatement: In Gross Easement is assignable unless there is reason to believe that the parties intent to easement to be non assignable.

Non Commercial Easements (Modern View)

Modern View: A Non Commercial Easement in gross is assignable and transferable.

Non Express Easement

Non Express Easement can be created through: 1. Prior use, 2. Implication from map or boundary description, 3. Necessity, 4. Prescription.

Commercial Easements (Old View)

Old View: Commercial Easements's rebuttable presumption is that the easement is assignable.

Non Commercial Easements (Old View)

Old View: Commercial Easements's rebuttable presumption is that the easement is non assignable and non transferable.

Non Commercial Easements

Old View: Non assignable and non transferable. New View: Assignable and Transferable.

Relocation of easement (Minority Rule)

Once the location of the easement is fixed, it can be unilaterally relocated by the servient owner, as long as: a) the change does not unilaterally reduce the utility of the easement, b) make it more difficult to use and and enjoyment of the easement, c) frustrate the purpose of easement.

Reservation Easement

Reservation Easement arises when the dominant owner grants the servient land to the servient owner but retains or reserves an easement over the property. Reservation retains for the grantor a newly created property right. Traditionally, reservation in favor of third party was invalid.

Release and Abandonment

The easement owner can terminate his/her rights by formal written instrument. The easement owner can terminate his rights by abandoning the easement. Abandonment results when easement owner, intending to relinquish his easement rights engages in a conduct that shows his/her intent. Example: Failure to utilize the easement for its authorized use is an intend to abandon. However non use alone is not sufficient to extinguish an easement.

Negative Easement (aka Restrictive Easement)

The holder of Negative Easement prevent the possessor of land burdened by easement from performing acts upon land that he would otherwise have legal right to perform. Examples: A pays B to not build anything on land that will obstruct his view/ air.

How to determine whether an easement is appurtenant or in-gross?

The intent of the parties, language, and relevant provision of deed in the light of existing situation and surrounding circumstances is looked in order to determine whether an easement is appurtenant or in-gross. When there is an ambiguity between appurtenant or in-gross, it is always appurtenant easement. In determining intent, the court looks at the language used by the grantor in granting the instrument in the light of surrounding circumstances.

Dominant Estate

The land benefited by the easement, if any, is called dominant estate. Dominant estate is responsible for the maintenance and upkeep of the easement.

Servient Estate

The land subject to easement that is burdened by the easement is called Servient Estate.

Prescription

The servient owner can extinguish easement by making adverse use of burdened parcel for same period of time necessary to acquire an easement by prescription.

Stranger to the Deed

The traditional rule is that a deed with a reservation or exception by grantor in favor of third party does not create a valid interest in favor of that third party. The common law rule says that a reservation or exception in a deed cannot create rights in a third party. Stranger to the Deed protects bona fide purchasers and avoid conflict of ownership. Several states have eliminated Stranger to the Deed rule as it frustrates the grantor's intent.

Succession of Dominant Estate

Unless there is an express provision in the deed, an appurtenant easements presumed to be transferred with dominant estate. Appurtenant easement is not transferred to non-dominant land.

Notes

When Blackacre is landlocked, parties intend the easement to be appurtenant.