easements

Question 1

easements

Answer 1

Expressly (through writing);
o Impliedly;
o Prescriptively;
o By Estoppel; or
o Partial Performance.

Question 2

affirmative v negative

Answer 2

affirm the right to do something
negative preventing someone from doing something

Question 3

express

Answer 3

creation= written grant
duration=perpetual shorter if stated
scope=Anything not inconsistent with provisions
extinguishment = Expiration of term; release,
abandonment, merger; transfer of
servient estate to bfp without notice,
adverse possession, prescription,
condemnation
transfer= runs with the estates all for appurtenant

Abandonment (requires proof of):
 Intent to abandon; &
 An affirmative act in furtherance of the intent.

Question 4

easement estoppel

Answer 4

creation= proof of an act or representation of the owner of the burdened estate in respect to the easement; Actual and justifiable reliance on that act or representation and an injustice (damage) that will be suffered by the owner of the
benefitted estate if the easement is not established.
transfer= runs with the estates
duration =potentially perpetual

scope= Anything not inconsistent with use authorized by easement

ex= Release, merger, abandonment,
transfer of servient estate to bfp
without notice, adverse possession,
prescription, condemnation

Question 5

perspective

Answer 5

creation= Use that is actual, open, hostile, (exclusive), continuous for 20 years. courts split on exclusive
majority An unexplained, open or notorious use of land, continued for the prescriptive period, is presumed to be adverse.

duration= potentially perpetual depends on owners rights

scope = Anything consistent with general kind of use authorized by easement

ex= Release, merger; abandonment,
transfer of servient estate to bfp
without notice, adverse possession,
prescription, condemnation
transfer= runs with the estates

Question 6

implied necessity

Answer 6

creation= Initial unity of ownership;
 Severance of that unity; and
 Requisite degree of necessity.
o Reasonable necessity is required if there was prior use (a quasi-easement).
o Strict necessity is required if there was no prior use

scope = consistent with prior use anything not inconsistent with necessity

Expiration of necessity (at least for
implied easement with no prior use);
release, abandonment, merger;
transfer of servient estate to bfp
without notice, adverse possession,
prescription, condemnation
transfer= runs with the estates

Question 7

public trust doctrine and shores look at notes

Question 8

transfer of easements

Answer 8

Transfer of Benefit:
o Easement of Profit Appurtenant:
dominant transferred even if not in deed .

o Easement in Gross:
 Traditionally, the benefit of an easement in gross could not be transferred.
 However, the modern rule permits transfer of an easement in gross if:
 The grantor of the easement so intends; &
 The easement is commercial in nature.

Burden:
o In the case of an express easement, transfer of the servient estate will result in an accompanying
transfer of the burden, so long as the holder of the dominant tenement has complied with the
provision of the relevant recording statute.

Question 9

appurtenant
gross

Answer 9

Appurtenant: An easement appurtenant requires a dominant and servient tenement.
o In Gross: An easement in gross is personal in nature, resulting in a servient but not a dominant
estate.

Another example of an easement in gross might be a utility company that has the right to access a particular piece of land to maintain power lines or other infrastructure. The easement belongs to the company and is not attached to any specific piece of land

Question 10

negative easement

Answer 10

creation= written grant
duration= perpetual or shorter if stated
scope = fixed by grant
transfer = runs with estates
ex= Expiration of term, release,
abandonment, merger,
transfer of servient estate to
bfp without notice, adverse
possession, prescription

Question 11

gross easement

Answer 11

creation= written grant
duration= perpetual or shorter if stated
scope = fixed by grant
transfer= Nontransferable if non-commercial; transferable if
commercial and parties intend
ex= Expiration of term, release,
abandonment, merger,
transfer of servient estate to
bfp without notice, adverse
possession, prescription

Question 12

license

Answer 12

A license is merely a privilege, usually to do something on someone else’s property.

created= To create a license, neither a writing nor consideration is required.

Because a license is personal, it is not transferable unless the licensor so intends.

terminates at death of licensor or at will of licensor

irrevocable when = License Coupled with an Interest: owns personal prop on land

Executed License:
o An executed license is based on estoppel and often involves a substantial
expenditure of funds.