Servitudes Flashcards
What is an easement?
An easement is a grant of a non-possessory interest that entitles it’s holder to some form of use or enjoyment of another’s land.
What are the 4 types of negative easement?
Light
Air
Support
Stream water
Scenic view (only in some states)
What is a negative and an affirmative easement?
Affirmative easement = the right to do something in the servient land.
Negative easement = entitles the easement holder to prevent the servient landowner from doing something that they would otherwise have a right to do on their land.
How is a negative easement created?
Only:
Expressly
In writing
Signed by grantor
An easement is appurtenant when…?
It benefits the holder’s physical use or enjoyment of his property.
Usually involves two parcels of land. One will be the dominant tenement (getting benefit of easement) and the other will be servient, bearing the burden.
An easement is in gross when…?
It confers upon the holder a personal or pecuniary advantage unrelated to their use and enjoyment of the land.
Is there a servient or dominant tenement for an easement in gross?
The burdened land is servient, but no dominant tenement here.
Is an easement in gross transferable?
Not unless it is commercial
How does an easement appurtenant transfer?
For the dominant tenement = automatic transfer
For the servient tenement = transfers UNLESS: (1) the new owner is a BFP; and (2) without notice of the easement.
How do you create and affirmative easement?
Remember: P I N G
PRESCRIPTION (analogous to adverse possession) — C O A H
IMPLICATION (because there was a previous easement that was: (1) apparent, and (2) the parties expected it to survive (because it was reasonably necessary for use/enjoyment)
NECESSITY
GRANT (by written deed of easement)
To acquire an easement through adverse possession, does it have to be exclusive?
No. Actual, but for easements, this doesn’t mean exclusive.
How can you terminate an easement?
Remember: END CRAMP
ESTOPPEL (because the servient landowner materially changes their position in reliance that easement will no longer be enforced)
NECESSITY (now over)
DESTRUCTION
CONDEMNATION
RELEASE
ABANDONMENT (requiring physical action by easement holder. That means intention never to use the easement again. Mere non-use insufficient)
MERGER
PRESCRIPTION (by servient landowner interfering through adverse possession)
What is a license?
A privilege to enter another’s land for some delineated purpose.
Must a license be in writing?
No. It falls outside the SoF.
In which circumstances is a license not freely revocable?
Only when there is estoppel.
When the licensee has invested substantial money or labour in reliance on the license continuing.
