Easements

Question 1

What is an easement?

Answer 1

Right to a limited use or enjoyment of anthers land

Question 2

Is easement revocable?

Answer 2

Not revocable by landowner

Question 3

What is a servant tenement?

Answer 3

(person who grants the easement)

a. Land burdened by the easement (land which suffers because of easement)

Question 4

What is a dominant tenement?

Answer 4

a. Land, if any benefited by the easement; land which is made more valuable because of the easement

Question 5

What is an affirmative easement?

Answer 5

Easement holder may do something on the servant tenement

Question 6

What is a negative easement?

Answer 6

Holder may prevent something from being done on the servant tenement (stop them from blocking view)

Question 7

What does the owner of the burdened property have to do?

Answer 7

Has not duty to do something on the burdened property

Question 8

What is an appurtenant easement?

Answer 8

a. dominant tenant owns land benefited by the easement
b. Easement benefits land
c. Easement runs with the land indefinitely, unless otherwise stated.
d. Example: road to go across neighbor land

Question 9

What is in gross easement?

Answer 9

No benefited land; easement benefits a person, the dominant tenant.

Question 10

What is a license?

Answer 10

1. Use of land that is revocable by the servient tenant

a. Often deemed too weak to be a true interest in land; just a contract right; most licenses may be revoked at will.

Question 11

What are the 3 creation methods for an easement?

Answer 11

(1) express (2)Implied (3) prescriptive

Question 12

What is an implied easement? two types

Answer 12

1. Necessity: (1) land locked; (2) reasonableness

2. Prior use: (1) use prior to severance; (2) common ownership

Question 13

What is prescriptive?

Answer 13

(1) openness; (2) adversity; (3) exclusivity; (4) uninterrupted; (5) continuous

Question 14

What are the 3 ways to create an express (written) easement?

Answer 14

1. Grant – express grant from servient tenant to dominant tenant in a deed.
2. Reservation to grantor – grantor reserves an easement in the deed when conveying the land.
3. Reservation to third party – grantor reserves an easement for third party
   a. Grantor should reserve the easement and then convey it to the third party

Question 15

Two requirements of an implied easement?

Answer 15

deed conveys some but not all of grantors land, deed conveys grantors land to different grantees,

Question 16

Two types of implied easements?

Answer 16

(1) By prior use and (2)by necessity

Question 17

Requirements of a “by necessity” easement?

Answer 17

(1) owner needs easement to gain access to land (2) easement only exists when the necessity exists

Question 18

Requirements of “by prior use” easement?

Answer 18

Use must exist prior to the severance of the land (parties merely forgot to place easement in deed)

Question 19

Factors court examines in a by prior use easement?

Answer 19

i. Prior use apparent or discoverable by reasonable inspection
ii. Permanent or continuous
iii. Necessary and beneficial
iv. Price paid; existence of reciprocal benefits; exact language of deed

Question 20

What are the elements of creation by prescription?

Answer 20

(1) open and notorious (2) adverse to owners right of claim (3) exclusive (varies by jurisdiction - majority = no; minority = yes; Texas = yes)
(4) uninterrupted use (5) continuous (Texas is 10 years).

Question 21

What are the elements of creation by prescription in Texas?

Answer 21

(1) open and notorious (2) adverse to owners right of claim (3) Exclusive to everyone, including owner (4) uninterrupted use (5) continuous use for 10 years

Question 22

Use of easement by servant tenant?

Answer 22

May continue to use and enjoy but may not interfere with dominant tenants use. May not move the location of the easement.

Question 23

Can you transfer in gross easement?

Answer 23

Common law - no transfer allowed. Modern law = transfer allowed if commercial.

Question 24

Termination methods of an easement?

Answer 24

1. Natural duration
   ii. Merger - Dominant and servient tenements reunited
   iii. Release - Dominant tenant conveys easement back to srvient tenant
   iv. Abandonment by dominant tenant - Oral release by dominant tenant followed by servient tenants conduct that reflects detrimental reliance on release
   v. Forfeiture - Dominant tenant abuses the easement and injunction remedy ineffective.
   vi. Not mere non-use: dominant tenant has no duty to use the easement to keep it.
   vii. Prescriptive/adverse use: unreasonable nterferecne for presctipive period
   viii. Sale of servient tenement of a prescriptive or implied by prior use easement: if apparent by inspection – easement likely to continue; if not apparent – jurisdictions are divided.