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Flashcards in Easements Deck (40):
1

An interest in real property
No right of possession
Limited right to use the land for a specific purpose
“Runs with the land” and binding upon subsequent owners

Easement

2

Not an interest in real property
A privilege to use the land of another for a specific purpose
Personal to the grantee; cannot be transferred or assigned
Can be revoked by the grantor at any time

License

3

An interest in real property
Tenant has the exclusive right of possession of the land

Lease

4

a nonpossessory right to use the land of another party
Estate, tenement, land, parcel, and property all mean the same thing

Definition of easement

5

the land that is benefited by the easement

Dominant estate

6

the easement holder / the owner of the land that is benefited by the easement

Dominant owner:

7

the land that is burdened by the easement

Servient estate

8

owner of the land that is burdened by the easement

Servient owner

9

Easement created with the agreement of the owner whose land is burdened

Express easement

10

Other than an ________ ________, all easement types are imposed as a matter of law without the need for the agreement of the owner whose land is burdened

express easement

11

Types of Easements

Implied easement by prior existing use
Easement by necessity
Prescriptive easement
Easement by estoppel
Express easement

12

A nonpossessory right to use land in the possession of another

Easement

13

(1) Nonpossessory – Easement holder has not right to possession of the land. This is different from freehold and nonfreehold estate. Right to use land for a limited purpose.
(2) Interest in land – It is not simply a contract right; It must satisfy the Statute of Frauds.
(3) Burdens land of another – A person cannot hold an easement in his own land

NIB

Easement Elements

14

By an express grant - a written agreement between the servient owner and the dominant owner, or
By an express reservation – typically, an easement reserved by the grantor when he conveys a portion of his property a third party but retains an easement over that property
Must satisfy the Statute of Frauds

Creation of Easement

Express easement

15

By prior existing use
By necessity
By prescription
By estoppel
These 4 types of easements arise as a matter of law, without any express agreement to create an easement

Creation of Easement

Easements created by implication

16

Benefits the easement holder in his use of a specific property (the dominant estate)

Involves 2 parcels of property, a servient estate (the burdened parcel) and a dominant estate (the benefited parcel)
The easement may only be used for the benefit of the dominant estate
Automatically transfers upon a conveyance of the dominant or servient estate
Viewed as attached to the land

Involves two parcels of land, usually adjacent

Easement Appurtenant

17

if an easement is granted in connection with a conveyance of land to the easement holder, the easement will be construed as appurtenant unless there is clear evidence that the grantor intended to create an _________ __ _____

easement in gross

18

Unless the parties otherwise agree, an __________ _______ is automatically transferred with the ownership of the dominant (benefited) estate and servient (burdened) estate

appurtenant easement

19

Under the ________ approach, an easement in gross is non-transferable unless it is of a commercial nature

traditional

20

The transferability of an easement in gross should depend on the parties’ intentions and not on the characterization of whether it is appurtenant or in gross

Modern trend: Restatement §4.6(1)(c)

21

Grants the easement holder the right to perform some act on the servient estate

Affirmative Easement

22

Grants the easement holder the right to prevent the servient owner from performing some act on the servient land

Negative Easement

23

Right of a third party to enter the land to remove minerals, oil & gas, timber, other natural resources

Profit

24

If the agreement created a valid express easement, then it was an _________ which continued to burden the land

easement

25

If the agreement did not create a _____ ______ easement, then it was a license agreement which could be revoked

valid express

26

If the owner has the right to exclude the user or ______ __ ______, it is usually a license

revoke the right

27

If it is for a ________ period, it is more likely to be an easement (because a license is generally revocable at any time)

definite

28

Courts look at the _________ of the document, not what the parties call it, to determine if it is an easement or a license

substance

29

If the owner has the ______ __ _______, it is most likely a license

right to revoke

30

If it includes a provision stating it is _______ ____ _______ owners, it is most likely an easement

binding upon future

31

The ______ of the document does not control

title

32

Easement by necessity lasts only as long as the ________ continues

“necessity”

33

To establish an __________ __ ________ based on necessity, the following elements must be met:

Common grantor conveys/severs a portion of his land
There is a strict necessity for the easement at the time of the severance

easement by implication

34

Easement by implication based on prior existing use requires

Grantor conveys a portion of his property to a 3rd party (severance of title)
An existing, apparent and continuous use of the servient land for the benefit of the dominant land before the conveyance
Some level of necessity of the continued use after the conveyance

35

Easement by implication based on necessity requires

Grantor conveys a portion of his property to a 3rd party (severance of title)

Some level of necessity of use exists after the conveyance

36

Majority/ Traditional view
Strict necessity is required
Example: the owner of the dominant parcel has no legal right of access to his property

Minority / Modern (and Restatement) view
Reasonable necessity is required
The easement must be beneficial or convenient for the use of the dominant parcel

Berge view (also a minority view)
Dominant owner must lack reasonably practical access
Middle ground between the majority view and the minority/Restatement view

Three views of the level of necessity needed for an easement by implication based on necessity

37

A lack of “reasonably practical access” for the “reasonable enjoyment of his land” is required to find an _________ __ ___________

easement by necessity

38

the owner of the servient parcel has the right to select the location/route of the easement by necessity
If the location chosen by the servient owner imposes a significant financial burden on the dominant owner, the court will defer to the location chosen by the dominant owner

Location E by N

39

Open and notorious
Continuous

Adverse and hostile
All jurisdictions agree that a claimant who uses land with the permission of the owner cannot claim a prescriptive easement because his conduct is not adverse and hostile

For the statutory period
The statutory period is typically the same for adverse possession and for prescriptive easements
-The period for prescription is usually the same as the state’s adverse possession statute
-Use must be continuous, open and notorious
-Claimant does not have to exercise exclusive use of the land
-Use must be adverse

Prescriptive Easement

40

Traditional view: the public at large cannot acquire an easement by prescription
This is still the rule in many jurisdictions
But some jurisdictions recognize the right of the public at large to acquire a prescriptive easement

Prescriptive use by the Public