Easements

Creation of Easements

1. Express Grant: Any easement must be memorialized in writing and signed by the holder of the servient tenement unless its duration is brief enough (1 year or less) to be outside the coverage of a particular SoF. A grant of an easement must comply with all formal requisites of a deed 2. Express Reservation: An easement by reservation arises when a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose 3. Implication: An easement by implication is created by operation of law. It is an exception to the SoF. a. Easement Implied from Existing Use: Implied if i. Prior to the division of a single tract ii. An apparent and continuous use ecists on the servient part iii. That is reasonably necessary for the enjoyment of the dominant part and iv. The court determines that the parties intended the use to continue after the division of land b. Easement Implied Without Existing Use i. Subdivision Plat: When lots are sold in a subdivision with reference to a recorded plat or map that also shows street signs leading to the lots, buyers of the lots have implied easements to use the streets to access their lots ii. Profit a Prendre: The holder of the profit a prendre has an implied easement to pass over the surface of land to use it as reasonable necessary to extract product c. Easement by Necessity: An easement by necessity arises when a landowner sells a portion of his tract and by this division deprives one lot of access to a public road or utility line. The owner of the servient parcel has a right to locate the easement 4. Prescription: Acquiring an easement by prescription is analogous to acquiring property by adverse possession. To acquire a prescriptive easement, the use must be: a. Open and notorious b. Adverse c. Continuous and uninterrupted d. For the statutory period

Irrevocable Licenses

A license becomes irrevocable in the following situations: 1. Estoppel: If a licensee invests substantial amounts of money or labor in reliance on the license, the licensor cannot revoke. The license becomes an easement by estoppel which lasts until the holder receives sufficient benefit to reimburse him for expenditures 2. License coupled with Interest A license coupled with an interest is irrevocable as long as the interest lasts. For example, the vendor of a chattel may enter the seller's land to remove the chattel, and a future interest holder may enter and inspect the land for waste.

Types of Easements

Affirmative Easement: holder is entitled to make affirmative use of the servient tenement Negative easement: entitle the holder to compel the possessor of the servient tenement to refrain from engageing in an activity on the servient estate.

Termination of Easements

An easement can be terminated the following ways: 1. State Conditions: original easement grant may specify the termination 2. Unity of Ownership: If the same person acquires ownership of both the easement and the servient estate, the dominant and servient estates merge and the easement is destroyed. Even though there may be later separation, the easement will not be automatically revived. the unity must be complete (i.e. the duration of the servient tenement must be equal to or longer than the duration of the dominant tenement with which it is combined 3. Release: An easement can be terminated by a deed of release from the owner of the easement to the owner of the servient tenement 4. Abandonment: An easement is extinguished when its holder demonstrates by physical action (eg building a structure that blacks access to easement on adjjoining lot) an intent to permanently abandon the easement. Merely expressing a wish to abandon does not extinguish the easement; neither does non-use. However, oral expressions combined with a long period of non-use may be enough 5. Estoppel: Oral expressions of intent to abandon do not terminate an easement unless committed to writing (release) or accompanied by action (abandonment). But if the owner of the servient estate changes his position in reasonable reliance on the representations made or conduct by the owner of the easement, the easement terminates through estoppel. 6. PrescriptionL There must be adverse, continuous interruption of the use for the prescripted period (usually 20 years) 7. Necessity: easements created by necessity expire as soon as the necessity ends 8. Condemnation and Destruction: Condemnation of the servient estate extinguishes all easements. Courts are split as to whether easement holders are entitled to compensation. Involuntary destruction of such a structure in which there is an easement extinguishes the easement; voluntary destruction of such a structure does not

Easement holder

An easement holder has the right to use another's tract of land for a special purpose (e.g. to lay pipe, to access a road or lake, but has no right to possess or enjoy that land. An easement is presumed to be of perpetual duration unless the grant specifically limits the interest.

Easement Appurtenant

An easement is appurtenant when it benefits the holder in his physical use or enjoyment of another tract of land. Thus, for an easement to be appurtenant, there must be two tracts: the dominant tenement (the estate benefitted by the easement), and the servient tenement (the estate subject to the easement right) An easement appurtenant passes with the transfer of the benefited land, regardless of whether it is mentioned in the conveyance. The burden of the easement also passes automatically with the servient estate unless the new owner is a bonafide purchaser with no actual or constructive notice of the easement

Scope of Easements

In the absence of specific limitations, courts assume that the easement was intended to meet both present and future needs of the dominant tenement. If the dominent parcel is subdivided, the lot owners will not succeed to the easement if to do so would unreasonably burden the servient estate Use of the Servient estate-Repairs The servient owner may use her land in anyway she wishes as long as her conduct does not interfere with performance of the easement. The easement holder has the duty to make repiars to the easement if he is the sole user but if both parties are using the easement, the court will apportion the repair costs

Licenses

Licenses privilege their holders to go on the land of another. Unlike an easement, a license is not an interest in land; it is merely a privilege, revocable at the will of the licensor. A license is personal to the licensee and thus inalienable. Any attempt to transfer a license results in revocation by operation of law.

Easement in Gross

The holder of an easement in gross acquires a right to use the servient tenement independent of his possession of another tract of land, i.e. the easement benefits the holder rather than another parcel. An easemennt in gross for the holder's personal pleasure, like the right to swim in the pond on Blackacre is nor transferable, but one that serves an economic or commercial interest like the right to erect billboards on Blackacre is transferable