Easements Flashcards
Easement Definition
An easement is a grant of a nonpossessory property interest that entitles its holder to use or enjoyment of another’s land.
Affirmative Easement Definition
Right to go onto and do something on another’s land
Negative Easement Definition
Right to prevent landowner from doing something (LASS):
o Light (can prevent your neighbor from impeding your access to sunlight)
o Air (can prevent your neighbor from impeding your access to air flow)
o Support (can prevent your neighbor from impeding your access to underground support)
o Stream water from an artificial flow (can prevent your neighbor from impeding your access to stream water)
Minority: can prevent your neighbor from impairing your scenic view
How to create a negative easement
MUST be created expressly by a writing signed by the grantor
What is an Easement Appurtenant?
An easement appurtenant is a right to use someone else’s land, called the servient parcel, for the benefit of the holder’s own tract of land, called the dominant parcel.
What is an Easement in Gross?
An easement is in gross if it confers upon the holder some personal or pecuniary advantage that is not related to their use or enjoyment of their land.
Here, the servient land burdened but there is no dominant tenement.
- The right to swim in another’s pond
- Right to lay power lines on another’s lot
Transferability of an Easement Appurtenant
When a DOMINANT parcel is transferred, the appurtenant easement passes automatically regardless of whether it is even mentioned in the conveyance.
When a SERVIENT parcel is transferred, its new owner takes it subject to the burden of the easement unless she is a bona fide purchaser with no notice of the easement.
Transferability of an Easement in Gross
An easement in gross is not transferable unless it is for commercial purposes.
How to create an affirmative easement?
PING:
- Prescription (adverse possession)
- Implication (preexisting use)
- Necessity (Owner of servient parcel decides where that easement will be located)
- Grant (Created expressly through a signed writing that satisfies the SoF)
What is the remedy for overuse or misuse of an easement?
This does not terminate the easement.
The appropriate remedy for the servient owner is an injunction against the misuse.
How to Terminate an Easement?
END CRAMP:
Estoppel (Servient owner materially changes position on reliance)
Necessity ends (UNLESS the easement was reduced to an express grant.)
Destruction (UNLESS willful destruction by the servient owner)
Condemnation (of servient land)
Release (by holder to servient owner)
Abandonment (physical action)
Merger (easement and servient land held by same person)
Prescription (by servient owner)
Definition of a Bona Fide Purchaser
A bona fide purchaser (“BFP”) is someone who purchases property for valuable consideration, without notice of the prior interests.
May come up when the servient parcel of an easement appurtenant gets sold (transferee of servient parcel takes subject to the easement unless they were a BFP)
