(10) Easements (servitudes)
How is the scope of an easement determined? (2 possibilities)
(1) By the terms or conditions that created it. (NOTE No unilateral enforcement) (2) In the absence of specific imitation in the grant, courts assume that the easement was intended to meet both present and future needs of the DOMINANT tenement. If, however, the dominant parcel is subdivided, the lot owner will not succeed to the easement if to do so would unreasonably overburden the servient estate
What are 3 common examples of affirmative 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.
What are 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
In what two limited situations can an easment be implied without exisitng us?
(1) When lots are sold in a subdivision with reference to a recorded plat or map that also shows streets leading to the lots, buyers of the lots have implied easements to use the streets to access their lots (2) The holder of the profit prendre has an implied easement to pass over the surface of the land and use it as reasonbly necessary to extract the product.
Wha are the two types of implied easments?
(1) easement implied from existing use (2) easement implied without any existing use
When will an easement be implied from existing use? (also called a quasi-easement)
(1) prior to the division of a single tract; (2) An apparent and continuous use exists on the "servient" part; (3) that is reasonably necessary for the enjoyment of the "dominant" part; and (4) the court determines that the parties INTENDED the use to continue after division of the land.
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 what?
(1)The previous use was apparent; (2) reasonably necessary to the dominant tenement's use and enjoyment.; and (3) the parties expected that the use would survive division
What is the writing that evidences the easement called?
A deed of easement
How do you terminate an easement by release? (this is the most common way)
A release given by the easement holder to the servient land owner will terminate the easement.
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. What does A have? Why?
A still has her affirmative easment b/c they created a written grant, therefore you cannot terminate by necessity!
What is required the express creation of a party wall or common driveway agreement?
A written agreement (per SOF).
How do you terminate an easement by abandonment?
Abandonment requires physical action by the easement holder showing the intent to never use the easement again. NOTE: words or nonuse will not be sufficient!
Easements are either __ or __?
Affirmative or negative
The burden of the easement appurtenant passes how?
Also automatically with the servient estate, UNLESS the new owner is a bona fide purchaser without notice of the easement.
A has an easement entitling her to cut across B's lawn to get more easily to her land. What kind of easement does A have? Why?
An affirmative easement appurtenant (remember 2 parcels). A's is dominant and B's is servient.
A grants B a right of way across A's land, so that B can more easily reach his land. B's land is benefited by the easement. What does B have?
An affirmative easement appurtenant to B's dominant tenement. Appurtenant = relevant to; helpful to
SafeSplash Swim School has an easement to use B's lake to give swim lessons. What kind of easement does SafeSplash have? Why?
An affirmative easement in gross
A has an easement entitling her to swim in B's lake. What kind of easement does A have? Why?
An affirmative easment in gross.
When will an easement of necessity be implied?
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.
An easement holder as the right to ______, but has no right to ______.
An easement holder has the right to use another's tract of land for a specified purpose, but has no right to possess or enjoy that land.
What is an easement?
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.
How is an easement by prescription created?
An easement may be acquired by analogy to adverse possession. COAH C: Continuous use for the given statutory period O: Open and notorious use A: Actual use that need NOT be exclusive H: 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.
When MUST you create 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
The appurtenant easement passes how?
Automatically with the dominant tenement, REGARDLESS of whether it is even mentioned in the conveyance.
A grants B an easement to use A's private road to get to and from B's parcel, Blackacre. What does B have?
B has an affirmative easement appurtenant
How do you terminate an easement by condmenation?
Condemnation of the servient estate by governmental eminent domain power will terminate the easement.
How do you terminate an easement by destruction?
Destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement.
Moreover, an irrevocable license can arise in what circumstance?
Detrimental reliance on a parol agreement
There are 8 ways to terminate an easement, what are they?
END CRAMP: Estoppel, Necessity, Destruction, Condemnation, Release, Abandonment, Merger, Prescription Note: In addition, an easement may be terminated under its stated conditions, meaning the original easement grant may specify when or under what conditions the easement will terminate.
How do you terminate an easement by necessity?
Easements created by necessity expire as soon as the necessity ends, UNLESS the easement was reduced to an express grant.
Negative easements can only be created how?
Expressly, by a writing signed by the grantor. There is NO natural or automatic right to a negative easement
An easement is presumed to last for how long?
For perpetual duration, UNLESS the grant specifically limits the interest.
The easement holder has a duty to make repairs if...
He is the sole user; but if BOTH parties are using the easement, the court will apportion the repair costs.
The servient owner generally may use her land in any way she wishes so long as what?
Her conduct does not interfere with performance of the easement.
How do you terminate an easement by 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.
Party walls and common driveways can also result from what?
Implication or prescription
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.
The easement in gross passes how?
It usually doesn't; An easement in gross is not transferable UNLESS it is for commercial purposes.
Negative easements are generally recognized in only what four categories?
LASS Light Air Support Stream water from an artificial flow + a minority of states also allow neg. easement for scenic views
What is an affirmative easement?
Most easements are affirmative. An affirmative easement is the right to go onto and do something on servient land.
Is it transferable?
No - it is not commercial so not transferable!
A has an easement of right of way 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 - merger. For example, assume 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.
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 this was termination by estoppel b/c B reasonably relied.
What are the four ways you can create an affirmative easement?
PING Prescription: Implication: Necessity: Grant:
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?
Prescription!
Generally, prescriptive easements cannot be acquired in what kind of land?
Public land.
If party wall or common driveway owners agree to be mutually responsible for maintaining the wall or driveway, the burdens and benefits of those promises (which are deemed covenants)...
Run to the successive owners of each parcel.
Why?
SOF
What is A's parcel?
Servient
What do those examples have in common?
Servient land is burdened BUT there is NO dominant tenement
When confronted with an exam question involving overuse or misuse of an easement, what should you remember?
That such use does not terminate the easement. The appropriate remedy for the servient owner is an injunction against the misuse.
When is an easement appurtenant?
The easement is appurtenant when it benefits its holder in his physical use or enjoyment of his property.
How do you terminate an easement by merger?
The easement is extinguished when title to the easement and title to the servient land becomes vested in the same person.
When is an easement 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.
What is a negative easement?
The negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.
How do you terminate an easement by 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: C: Continuous interference O: Open and notorious A: Actual H: Hostile to the easement holder
Courts will treat a wall erected partly on the property of each of two adjoining landowners as belonging to who?
To each owner to the extent it rests upon their land. Courts will also imply mutual cross-easements of support, with the result that each party can use the wall or driveway and neither party can unilaterally destroy it.
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.
Why should you be wary of fact pattern in which a grantor reserves an easement for someone else?
Under the majority view, an easement can be reserved only for the grantor. An attempt to reserve an easement for anyone else is void.
An easement by reservation arises when?
When a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose.
Is it transferable?
Yes - its commercial!
Does the release have to be in writing?
Yes!
Now A sells her parcel to Mr. X, with no mention of the easement. Does Mr. X enjoy the easement?
Yes, easement appurtenant's pass with the dominant parcel automatically
An easement is also either ___ or ___?
appurtenant to land or it is held in gross.
