Easements & Related Interests

Permission for a person to go onto the land of another without being a trespasser; not, by itself, an interest in land.

True, a license (aka mere licesnse) is revocable.

Otherwise, revocable license may become irrevocable by estoppel.

(1) License (aka mere license): revocable but otherwise a revocable license may become irrevocable by estoppel.
(2) License coupled with an interest: irrevocable as long as interest lasts.
(3) Executed license: Oral attempt to create an easement fails, and creates license; once acted upon, the license may become irrevocable.
(4) Because a license isn't a contract, consideration isn't required.
(5) Irrevocable license is treated as an easement by the Restatement.

The Restatement treats an easement as a irrevocable license.

Irrevocable as long as the interest lasts.

Because it's not a contract.

Oral attempt to create an easement fails, and creates license; once acted upon, the license may become irrevocable

True

Easements

When the owner sells the rights to the land to another person, but without giving them legal ownership versus a permanent encumbrance (legal right) to the property.

True.

False, Easements may be either appurtenant or in gross but not both.

•Benefits adjoining property regardless of who owns that property.

• It can only exist only if there is a Dominant Estate which benefits and a Servient Estate which is burdened by it.

There is a Judicial Preference for interpreting easements as appurtenant?

When there is ambiguity there is a Judicial Preference for interpreting easements as appurtenant.

A piece of land (the dominant tenement or dominant estate) at the expense of another piece of land (the servient tenement or servient estate).

Benefits an individual at the expense of a piece of land (the servient tenement).

(1) Assignable vs. Easements in Gross & other Interests).
(2) Follows the Dominant Tenement

• Refers to property that uses an easement over another property.
• Easement Appurtenant follows this.
• For example, if lot A had an easement over lot B to access water lines underground, lot A would be the dominant tenement and lot B would be the servient tenement.

If the easement is commercial then it's assignable.

(1) Easements Appurtenant are Assignable, and follow the Dominant Tenement;

(2) Easements in Gross & other Interests aren't assignable whereas the benefit of an Easement in Gross is assignable if the easement is commercial.

True, Easements may be affirmative or negative.

Entitles the dominant tenant to use the servient tenement for some purpose.

Entitles the Dominant Tenant to prevent the servient tenant from using the servient tenement in a particular way.

(1) Windows (light)
(2) Air Circulation
(3) Support of buildings; such as lateral support; the right to lateral & subjacent support of land is generally treated as a property owner's other interests.
(4) Flow of water in an artificial stream: Support of land and flow of water in a natural stream are rights of all property owners.

• Negative Agreements

• Most are construed as restrictive covenants or equitable servitudes, and many courts may not even be aware of negative easements.

Most are construed as restrictive covenants or equitable servitudes, and many courts may not be aware of negative easements?

Most negative agreements are construed as restrictive covenants or equitable servitudes, and many courts may not even be aware of negative easements.

• Rather than create new negative easements courts have created or recognized analogous interests as equitable servitudes.

• To complicate matters, these equitable servitudes are sometimes referred to as “negative easements.”

The right of one person to go onto the land of another and take either some part of the land itself (minerals, gravel) or some product of the land (fruit, fish, timber).

True

True

True

(1) Easements may be either appurtenant or in gross.
(2) Easements may be either affirmative or negative.
(3) Profit-à-prendre

(1) Reservation and Grant.
(2) Express..
(3) Implied.
(4) By prescription.
(5) By estoppel.

(1) An easement is said to be granted if it's created in favor of the grantee.
(2) An easement is said to be reserved if it's created in favor of the grantor.

An easement is said to be granted if it's created in favor of the grantee.

An easement is said to be reserved if it's created in favor of the grantor.

By deed or will (writing complying with Statute of Frauds or Statue of Wills).

(1) Implied by a prior existing use
(2) Implied by necessity
(3) Implied by the grant of a profit
(4) Implid by subdivision plat.
(5) Subdivision

If the dominant and servient tenants could have and appear to have intended to create an easement, but ailed to do so expressly, an easement may be implied.

(1) Dominant and servient tenement must originally have belonged to the same owner.
(2) The use must have been existing, apparent and continuous when the severance of ownership occured.
(3) There must've been a reasonable necessity for the use at the time of severance.

(1) The dominant and servient tenement originally belongeed to the same owner, and
(2) The severence of ownership caused one parcel to become landlocked (have no road access or in some states no access to a necessary utility line).

(1) The dominant and servient tenement originally belongeed to the same owner, and
(2) The severence of ownership caused one parcel to become landlocked (have no road access or in some states no access to a necessary utility line).

Where an easement to pass over is not specifically included with the grant of a profit and is necessary to make use of the profit, one may be implied (See profit-à-prendre, above).

Where a deed refers to a recorded plat or map showing streets leading to the lot, there is an implied easement for use of the streets for access, even if the public easements in those streets granted to local government are later vacated or otherwise terminated.

When land is subdivided, the benefit of an easement appurtenant may attach to each lot in the subdivision only if the burden on the servient tenement is not thereby increased beyond the extent contemplated by the original parties.

(1) Adversely (without permission)
(2) Uses the servient tenement
(3) Openly and notoriously
(4) Continuously and without interruption
(5) For the statutory period
(6) Note that exclusivity, a requirement of adverse possession, is not required for the creation of an easement by prescription
(7) Prescriptive easements may be either appurtenant or in gross
It is generally not possible to acquire a negative easement by prescription

An otherwise revocable license may become irrevocable by estoppel if the dominant tenant relies to his or her detriment on the conduct or assurances of the servient tenant.

(1) Construction
(2) Location
(3) Change in Use
(4) Use of Servient Tenement to benefit non-dominant land adjacent to dominant tenement: Not permitted.
(5) Implied Easements
(6) Use of Servient Tenement
(7) Repair
(8) Use outside scope.

In general courts will attempt to construe the language creating an easement to allow for changes in circumstances over time, where doing so is not unreasonable, does not violate the express language of the grant, and does not significantly increase the burden on the servient tenement.

Where an easement's location on the servient tenement is not specified, the servient tenant may choose the location, so long as is reasonable and of sufficient dimension to allow for the intended use.

(1) Change in basic nature of use is not permitted; a new easement is required.
(2) Where scope of original easement is not expressly limited, changed circumstances may be the basis for increasing the burden on the servient tenement (e.g. by widening a roadway to accomodate large vehicles.)

No, it's not permitted.

When necessity is an element, the scope is limited by the necessity.

Absent any express provision to the contrary, the servietn tenant may make any use of the servient estate that doesn't interfere with the easement.

Absent any express provision to the contrary, the servient tenant is under no obligation to erpair or maintain the easement.

Use exceeding the scope of the easement is surcharge.

The servient tenant's remedies for surcharge are damages and injunction; however, the underlying easement is not terminated by surcharge.

A surcharge.

Damages & Surcharge

(1) Release by the dominant tenant
(2) Merger of the dominant servient tenement (for easements, etc. appurtenant)
(3) Condemnation (w/ just compensation).
(4) Abandnoment
(5) Involuntary destruction of the servient tenement.
(6) Prescription
(7) Estoppel
(8) When the necessity ends when implied by necessity.

(1) Release by the dominant tenant
(2) Merger of the dominant servient tenement (for easements, etc. appurtenant)
(3) Condemnation (w/ just compensation).
(4) Abandnoment
(5) Involuntary destruction of the servient tenement.
(6) Prescription
(7) Estoppel
(8) When the necessity ends when implied by necessity.

(1) Adversely (without consent).
(2) Interferes with the use of the easement or otherwise uses the servient tenement in a way inconsistent with the existence of the easement.
(3) Openly & Notoriously
(4) Continously and without Interruption
(5) For the statutory period.

Easement may be extinguished by estoppel if, in reasonable reliance on conduct of dominant tenant, servient tenant uses servient tenement in a manner inconsistent with easement and it would be inequitable to permit further use.

When the necessity ends, as in,when the parcel is no longer landlocked.