Easements Flashcards
Easement
Non-possessory right to use land in possession of another.
-Gives the holder the right to do something on the property of another(affirmative) OR the right to keep the other from doing something on his property(negative).
Appurtenant Easement
(Beneficial, attached to title, and non-transferable, my way or the highway=right of way example)
Easement in Gross
Non-beneficial to property but beneficial to a particular party, and transferable.
- Utility Easement and Conservation easements(prevent development)
Express Easement
the clearest way to create an easement is by written grant by reservation, either by deed or will
Easement by Grant
servient grants the easement to the dominant
- dominant parcel/tenement(retained the benefit of the easement, burdens the servant’s land.)
-Servient parcel- bears the burden of the easement
Easement by Reservation
dominant conveys land to servient but reserves the easement (as it did not exist at the time of conveyance)
Creating Interests in strangers to the Deed
The common law rule is that a grantor cannot create an interest in a third party.
- Grantor may hold part of the conveyance back for himself, but cannot at the same time convey that reserved interest to someone else.
Easements by Estoppel
The dominant tenant reasonably relied to his detriment on the servient tenant’s promise.
- Would arise if injustice would otherwise result when …
- Majority: license, actions are taken in reliance on the license(reasonable), licensor knows or reasonably should expect the reliance.
Implied Easements
These situations arise when a grantor splits a piece of property into pieces and conveys one of the parcels. The court might determine that an easement was implied in the conveyance in two situations:
- by prior use or by necessity.
Implied Easements: Prior use
If a particular use of the servient parcel already existed and was reasonably necessary to the use and enjoyment of the dominant parcel.
Implied Easements: By necessity
If an easement became necessary due to the conveyance, the use did not pre-exist the conveyance, in fact, the need for the easement did not arise until the property was divided.
- Majority: The easement must be strictly necessary.
- Minority: the easement is reasonably necessary.
A necessity that arises later will NOT suffice.
Prescription Easement CONSEA
The dominant tenant uses the servient parcel without permission for the prescriptive period. To establish the use must prove use that is:
a. adverse
b. continuous
c. open and notorious
d. sufficient in scope
e. exclusive
Adverse
Use of the property without asking for the owner’s permission
Continuous
For a period of prescription, tacking is allowed with privity.
Open and Notorious
Actually known to the rightful owner of the servient estate OR be a situation where a reasonable owner of land would have noticed the use.
