Easements

Question 1

Definiton of easement

Answer 1

right that one person has to go onto anothers land for some limited use or enjoyment of the land

Question 2

Easement Appurtenant (definition)

Answer 2

benefits the owner of the easement in the use and enjoyment of the easement owner’s use of the land

Question 3

Easement Appurtenant (description)

Answer 3

Has dominant tenement-the tract benefitted by easement. And a servient tenement-the tract that burdened by easement

Question 4

Affirmative easement

Answer 4

Gives easement owner a right to make certain uses of someone else’s land, which would constitute trespass. Ex. Egress/Ingress

Question 5

Negative easement

Answer 5

Prevents or precludes a landowner from doing certain acts on his own land which he would otherwise have the right to do.

Question 6

Common Law 4 recognized negative easements

Answer 6

1. Not to block neighbor’s light 2. Not to interfere with air flow 3. Not to remove neighbors support 4. Not to interfere with flow of water in artificial stream

Question 7

Easement in Gross

Answer 7

Right or privilege to go on the land of another for some limited use or enjoyment of the land that benefits the owner of the right personally

Question 8

Legal Characteristics

Answer 8

Non possessory interest. Easement owner entitled to limited use or enjoyment. Limited rights to exclude others. Owner of dominant can exclude others from using. Can be measured in duration.

Question 9

License

Answer 9

A revocable privilege to do some act on another’s land which constitutes trespass without the privilege afforded by the license.

Question 10

EXC to irrevocability of license

Answer 10

1. License coupled with an interest in land. (profit). 2. Where equity would estop licensor from revoking-spending money in reliance on license

Question 11

Creation of express easements

Answer 11

May be created by deed or other written instrument. 1. Grant of easement only 2. Grant of easement through conveyance of the land to which the easement is appurtenant 3. By reservation when grantor conveys part of his land to a grantee but reserves for himself an easement over the land conveyed.

Question 12

Drafting suggestions for express easement

Answer 12

Signature of party to be charged. Adequate description of both D&S tenements. Location. Scope or purpose. Duration. Transferability.

Question 13

Easement by implication

Answer 13

Elements: 1. Unity of title 2. Pre-existing use

Question 14

Unity of title

Answer 14

At one time D&S tenements were owned by the same person. Later severed when the owner conveys to someone else

Question 15

Pre-Existing use (elements)

Answer 15

1. Apparent 2. Continuous 3. Reasonably necessary to use and enjoyment to quasi-dominant tenement

Question 16

PEU-Apparent

Answer 16

Discoverable upon a reasonable inspection

Question 17

PEU-Continuous

Answer 17

Not one time or sporadic

Question 18

PEU-Reasonably necessary to use and enjoyment of QD tenement (views)

Answer 18

Majority view: Not strictly necessary. Must be reasonably necessary.
Minority view: must be strictly or absolutely necessary

Question 19

Easement by necessity

Answer 19

Grantor conveys a part of his land and its landlocked by land owned by grantor and others

Question 20

To establish an easement by necessity, claimant must show…

Answer 20

1. there was unity of title of alleged D&S tenements. 2. Easement necessity, not mere convenience. 3. Necessity must exist at severance of title

Question 21

Easement by necessity-Majority Rule

Answer 21

Most states require proof that its strict or absolute necessity. It cannot be established if any other way to access the alleged landlocked property regardless of inconvenient or difficult other way would be for grantee to use.

Question 22

Easement by necessity-Minority Rule

Answer 22

Strict or absolute necessity is not required and an easement by necessity will be implied if grantee can establish that other way would be inadequate, difficult, or costly.

Question 23

Easement by necessity-Compensation?

Answer 23

Grantee not required to pay compensation

Question 24

NC Cartway proceeding

Answer 24

Only available for LO who plans to use land for 6 commercial purposes.

Question 25

Requirements for NC Cartway

Answer 25

1. plans to use prop for one of the purposes. 2. no other adequate means to access property 3. private cartway is necessary, reasonable and just

Question 26

Purpose for NC Cartway

Answer 26

1. cultivation 2. cutting and removing timber 3. working quarries 4. mines or minerals on the land 5. operative industrial or manufacturing plants 6. operating a public or private cemetery

Question 27

NC Cartway-Compensation?

Answer 27

Must pay for cartway!

Question 28

Easement by prescription (creation and prescriptive use)

Answer 28

Created by adverse use of another’s land.

Question 29

Easement by prescription (elements)

Answer 29

1. Adverse or Hostile to the LO’s interest. 2. Open and notorious 3. Continuous and uninterrupted for the required period of time

Question 30

Easement by prescription (adverse or hostile to LO’s interest)

Answer 30

Cannot be established if the use permissive. Gen Rule: There’s presumption that use was permissible-have to prove evidence that use was adverse and hostile. EXC: Common driveway

Question 31

Easement by prescription (open and notorious)

Answer 31

Use such that servient tenant either: Actually knew the use. OR Should have known about the use upon a reasonable inspection of the servient tenement

Question 32

Easement by prescription (continuous and uninterrupted-SOL)

Answer 32

Majority and NC borrow SOL period applicable to adverse possession=20 years. Tacking is allowed!

Question 33

Easement by prescription (continuous and uninterrupted for the required period of time. Actions sufficient to interrupt adverse use)

Answer 33

Minority view- LOs mere protest may be sufficient. Majority view-LO must either: phsycially block or obtain judgment. NC-Substantial interruption of adverse use will defeat. LO must prevent use of easement.

Question 34

Scope of easement (gen rule)

Answer 34

Easement appurtenant to one parcel of land may not be extended by the owner of the DT to other parcels owned by him. An extension thereof to other parcels is a misuse of the easement.

Question 35

Scope of express easement and implied easement of implication

Answer 35

Permissible scope is what is reasonably necessary and proper for the exercise of easement. Normal development of the DT. Whether it would cause additional burden to ST.

Question 36

Scope of easement by necessity

Answer 36

Look at circumstances surrounding creation of the easement

Question 37

Scope of easement by prescription

Answer 37

Allows for changes in degree of use, but not changes in the kind of use. Would change result in added burden to ST? Would owner of ST have acted to interrupt?

Question 38

Termination of easements

Answer 38

1. expiration of the period 2. merger of estates 3. release by owner of the DT (SOF) 4. adverse of prescriptive use by ST 5. destruction of ST 6. abandonment by DT

Question 39

Adandonment by DT requirements

Answer 39

D tenant stops using the easement and indicates through acts or other circumstances intent to abandon

Question 40

Profit

Answer 40

Right that one has to remove from another’s land some part or product of the land itself