Easements 1 Flashcards
(38 cards)
Easements are
nonpossessory interest in land
What does an easement do?
They allow easement holder to use or control someone else’s land
What is an easement of access?
A right to enter or cross through someone’s land on the way to someplace else. Requires the owner of the servient estate to allow the easement holder to travel on the land to reach another location.
Affirmative Easement:
The ability of the dominant estate (benefited property) can do something on the servient estate’s land.
Lets a person do something on or affecting the land of another, known as the servient estate or servient tenement.
Examples: right of way, pathway, profit (right to take something for land: like pick berries).
Benefit
The right of the easement
Burden
Obligation on the servient estate
Negative Easement
Prohibits the owner of the servient estate from engaging in some action on the land.
What is a servitude?
A legal device that creates a right or an obligation that “runs with the land”. A servitude can be an easement, profit, or covenant, among other things.
When does a right “run with the land”?
When it is enjoyed not only by its initial owner but also by all successors to that owner’s benefited property interest.
When does a burden “run with the land”?
When it binds not only its initial obligor but also all successors to that obligor’s burdened property interest.
Express Easements
Express easements are subject to the statute of frauds. Failure to comply with the statute may still be enforced in cases of reasonable detrimental reliance.
Primary purpose of conveyance
To try to give effect to the intent of the grantor
Implied Easements
Easement that comes into being without explicit agreement but arising from equitable enforcement of implied agreements or references to maps or boundry references in conveyance.
What are the two forms of implied easements?
1) Easement applied by existing use
2) Easement by necessity
Easement implied by existing use
May arise when a parcel of land is divided and amenities once enjoyed by the whole parcel are now split up , such that in order to enjoy the amenity (a utility line, or a driveway, for example), one of the divided lots requires access to the other.
Easement by Necessity
Arises when land becomes landlocked or incapable of reasonable use absent an easement. Example: If A owns a rectangular parcel bordered on the north, east, and west by a privately owned land and on the south by a public street, and conveys to B a strip of her land on the northern boundary, B will acquire an easement by necessity across the souther portion of the parcel retained by A. (Thomas v. Primus).
Thomas v. Primus
Rules:
Easement by necessity is imposed where a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor.
The party seeking the easement by necessity has the burden of showing that the easement is reasonably necessary for the use and enjoyment of the party’s property.
In considering whether an easement exists: the law may be satisfied with less than the absolute need of the party claiming the right of way. The necessity need only be a reasonable one.
Intent of the parties is NOT considered unless the parties agree an easement does NOT exist.
A party is NOT required to purchase additional land in order to create alternative access even at a reasonable price.
Easements by necessity need not be created at the time of conveyance
Easement by necessity found by court when landlocked parcel given to Primus and it was absolutely necessary in order to access the property.
What are the two traditional rationales for easements by necessity?
1) It is an implied term of a conveyance, assuming that the parties would not intend for land to be conveyed without a means for access.
2) The issue is one of public policy favoring land use
The traditional view of easements
The necessity giving rise to an easement by necessity must exist at the time the property is severed.
Express Easement of Way rights for maintenance
May require rights to maintain and improve the easement
Dominant Estate
The property that is benefiting from the easement
Servient Estate
the property that is burdened by the easement
Negative Easement
A restriction on the servient estate from doing something.
The dominant estate (benefited property) can block action on the servient estate (burdened property)
Appurtenant Easement
Related to two parcels next to each other - usually involves neighbors
Runs with the land (benefit of the easement is applied to the land) - always stays with the parcel of land that has that right
