REE chp 4

Restatement of the Law of Property:

- state the law, note emerging trends, and, at times, suggest changes in the law. -defines an easement as an interest in land in the possession of another that has the following characteristics •The owner of the easement is entitled to use and enjoy the land on a limited basis. •The easement owner is entitled to protection from third parties in the use and enjoyment of the land. •The easement owner is not subject to the will of the possessor of the land, as would be the case with a license. •An easement arises from facts other than possession of land by its owner. •The easement is capable of conveyance.

Three well-recognized situations when a license is considered irrevocable

1. When the licensee has exercised the license by expending capital and labor in reliance on the licensor's promise. 2. A license coupled with an interest: An irrevocable license granted to enter the licensor's property and exercise the legal rights he possesses in the licensor's property. 3. Some states have enacted statutes specifying that certain licenses are irrevocable

Creation of Easements: An easement may be created by agreement of the parties or by operation of law; in most cases it falls within one of four categories:

1.) Express Conveyance: 2.) Implied 3.) Prescription 4.) Estoppel

Conservation Easement:

A negative easement that limits potential development or other property uses in order to preserve open space, natural resources, wildlife, and similar land uses.

Easement by Estoppel:

A party is prevented by his own acts from claiming a right to the detriment of another party who was entitled to rely on such conduct and has acted accordingly.

License:

A privilege to enter the premises for a certain purpose, which does not operate to confer on, or vest in, the licensee any title, interest, or estate in such property.

Express Reservation:

A right created and retained by the grantor.

Prescriptive Easement:

A right to use another's property that is inconsistent with the owner's rights and that is acquired by a use 1.) the use must be adverse -both hostile as well as open and notorious 2.) The use must be continuous and uninterrupted for the period of the prescription - for the statutory period; to a certain extent, it resembles title by adverse possession but differs to the extent that the adverse user acquires only an easement and not title.

Exclusive Easement in Gross:

A transferable easement in gross in which the grantor conveys personal rights exclusively to the grantee

Nonexclusive Easement in Gross:

A transferable easement in gross in which the grantor does not convey personal rights exclusively to the grantee, but instead retains rights to the easement in gross.

Purchase of Development Rights:

A type of conservation easement conveyed to a local governmental entity in which landowners agree to restrict the use of their land in exchange for a reduction in taxes

Express Conveyance:

A written instrument in which the grantor transfers an interest in land.

Implied Easements:

An easement arising impliedly by reference to a 1.) plat or map, 2.) from prior use, or 3.) from necessity of use. Ways to create an implied easement:

Alienated:

An easement is "_________" when it is transferred from one person to another.

Apportioned:

An easement is "___________" when its use is divided or distributed consistent with the subdivision of the dominant tenement.

Termination of Easements:

An easement may be terminated by the following common methods: • Cessation of Purpose • Expiration of Period • Merger • Abandonment • Destruction of the Servient Estate • Estoppel • Prescription • Cessation of Necessity • Condemnation • Release

Implied Easement of Necessity:

An easement that arises by operation of law after land is divided if one of the parcels is inaccessible.

Easement Appurtenant:

An easement that benefits a particular tract of land; is incapable of existence separate and apart from the particular land to which it is annexed.

Affirmative Easement:

An easement that confers rights to use land burdened by the easement when the use would otherwise be illegal. -gives the owner the right to actively use the land that is subject to the easement.

Easement in Gross:

An easement that grants a personal right to use the property of another -servient estate, but no dominant estate.

Negative Easement:

An easement that prevents landowners from making certain uses of their land that would otherwise be legal. -have become very important in recent years with the development of technology for heating and cooling buildings with solar energy.

Implied Easement from Prior Use:

An easement that was apparent at the time an estate was divided and that is reasonably necessary for the use of the quasi-dominant estate.

Easement:

An interest in land that gives the owner the right to use real estate owned by another for a specific purpose.

Profit a Prendre:

An interest in the land of another that confers rights of use and removal of the profits of the soil.

Alienability and Apportionment:

Easements appurtenant and easements in gross are also distinguished from each other on the basis of whether they can be alienated and apportioned

Development of the Dominant Estate:

In determining the extent of an easement appurtenant, courts assume "that the parties to the conveyance contemplated a normal development" of the dominant estate.

False

In order to establish an easement by estoppels, the use of the easement must be hostile and open. True False

Extent of the Easement:

Once an easement has been created, a number of legal questions arise concerning the scope of its use; scope is generally determined by the easement's manner of creation.

b.) an easement appurtenant.

Shelly and Lisa own adjoining parcels of land. Shelly allowed Lisa to install a pipe across her property for the purpose of pumping spring water onto Lisa's property, but not for commercial purposes. Lisa's use of Shelly's property is: a.) an easement by necessity b.) an easement appurtenant. c.)a license. d.) a profit. e.) none of the above.

Dominant Estate (Dominant Tenement):

The land that benefits from the easement on another property; possessor of dominant estate is entitled to the benefits of uses authorized by the easement.

Servient Estate (Servient Tenement):

The land that is burdened by an easement appurtenant or an easement in gross.

False

The owner of a negative easement has the right to use the land that is subject to the easement. True False

Exclusive Use:

The person making the claim must make a claim on her own that is not derived from the adverse use of another party.

Tacking:

The process of gaining a prescriptive easement by adding the user's period of possession to that of a prior adverse user in order to establish a continuous period of use for the statutory period

Uninterrupted Use:

The requirement that the use be uninterrupted relates to activities of owners in obtaining a legal judgment or in taking action on their own to stop the. use

Continuous Use:

The use, in addition to being adverse, must be continuous and uninterrupted to establish and easement by prescription.

Adverse Use - Open and Notorious:

Unless the use is open, the owner of the servient estate will have no notice of the adverse use and, and without notice, will be unable to take action to prevent it

Estoppel:

When a person is prevented from denying or asserting anything to the contrary of that which has been established as the truth, either by judicial or legislative acts or by his own expressed or implied deeds, acts, or representations.

Hostile Use:

When a person uses land in a manner in which he does not recognize the rights of the land's true owner.

d.) necessity of use.

Which of the following is NOT a requirement for proving a prescriptive easement? a.) adverse use. b.) continuous use. c.) uninterrupted use. d.) necessity of use.

e.) two of the above (b and d)

Which of the following is generally considered a method of terminating an easement? a.) license b.) prescription c.) profit d.) estoppel e.) two of the above (b and d)

abandonment

an easement can be terminated if the owner relinquishes it intentionally, as indicated by her conduct.

expiration of period

an easement granted for a specific period of time will, of course, terminate at the end of that period.

creation of necessity

an easement implied by necessity is terminated when the necessity ends.

Unlike water rights and right to support:

an easement is not an inherent natural attribute of ownership.

Release

can be terminated by a deed or a will

Merger

if the owner of an easement acquires the servant estate , the easement is terminated ( termination by merger)

destruction of the servant estate

if the servant estate is destroyed through no fault of the servant owner, the easement is terminated even though the servant estate is later rebuilt.

terminated prescription

just as an easement can be created by prescription, it can be terminated by the servant owner's adverse continuous, and uninterrupted use for the prescriptive period.

Cessation of Purpose

when an easement is created for a particular purpose (for example, an easement used by a carting business), it terminates when that purpose no longer exists

condemnation

when the state, in exercising its sovereignty, acquires a servant estate an interest in it that is inconsistent with the continuance of an easement, the easement is terminated.

License

• A person with a license generally has personal, revocable, non-assignable permission to do one or more acts on another person's land. • Differs from an easement - easement is an interest in land and normally must be created by a written instrument.

Reference to Easements or to Plat:

•An easement can be created by reference to a road or right-of-way. •Disputes over right-of-way easements created by reference to maps and plats have become less common because many states now automatically dedicate the roads in new subdivisions for public use.