Easements, Licenses, and Covenants Flashcards
(39 cards)
Easement:
The grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the servient tenement.
The land that is subject to the easement is the servient estate, whereas the land that benefits from an easement on a servient estate is the dominant estate.
Easements by Grant:
An affirmative easement gives another the right to use the land for a specific purpose.
There are no specific language requirements necessary to grant an easement so long as the explicit grant clearly evidences the intent to grant the easement.
Easement by Reservation:
Created when a grantor conveys land but reserves an easement right in that land for his own use and benefit (and not for a third party).
Easements Appurtenant:
Easements are presumed to be appurtenant (i.e., tied to the land) unless there are clear facts to the contrary.
The benefits of an easement must correspond directly to the use and enjoyment of the possessor of the dominant estate (two parcels of land must be involved).
Easements In Gross:
If it was granted to benefit a particular person or commercial gain (as opposed to the land).
Only one parcel is involved (the servient tenement).
Express/Affirmative Easements & Types:
Arises when it is affirmatively created by the parties in a writing that is in compliance with the Statute of Frauds.
- Prescription
- Implication
- Necessity
- Grant
- Estoppel
Easements by Necessity:
An easement by necessity is generally created only when property is virtually useless (e.g., landlocked) without the benefit of an easement across neighboring property
Both the dominant and servient estates must have been under common ownership in the past and the necessity must have arisen at the time that the property was severed and the two estates were created.
The scope of an easement by necessity is limited to the nature and extent of the necessity, and is determined by the parties’ conduct.
Easement by Implication:
If an easement was previously used on the servient estate by an earlier owner, the court may find that the parties intended the easement to continue if the prior use was continuous, apparent (open and obvious), and reasonably necessary to the dominant land’s use and enjoyment (distinguish from an easement by necessity, which requires strict necessity).
Easements may also be implied without an existing use in a conveyance of lots sold in a subdivision with reference to a recorded plat or map that details streets leading to lots
Individuals who buy lots have an implied easement to be able to get to their lots that does not expire even if a public easement held by the city or county is vacated in the future.
A court will not grant an easement by implication if the petitioner has another reasonable means of accessing the property.
Quasi-Easement:
Because an owner cannot have an easement on his own land, this is considered a “quasi” easement.
The scope of a quasi easement is determined by the prior use that gave rise to the easement, but can change over time if the changes are reasonably foreseeable at the time of conveyance.
Easements by Prescription:
Easements can be obtained by prescription similarly to the way land can be acquired by adverse possession.
There must be continuous, actual, open, and hostile use for the statutory period (or 10 years).
Unlike adverse possession, the use need not be exclusive (such as a public easement to access a beach).
The scope of an easement by prescription is limited to the nature and extent of the adverse use.
Easements by Estoppel:
Good faith, reasonable detrimental reliance on permission by a servient estate holder may create an easement by estoppel to prevent unjust enrichment.
Distinguish this example from easement by prescription, which requires that the use be hostile (i.e., no permission was given).
To prove an easement by estoppel, there must be permission to use the property, plus detrimental reliance on that permission.
Negative Easements (Restrictive Covenants):
Prevents the owner from using land in particular ways.
To be valid, a negative easement must be expressly created by a writing signed by the grantor and it is typically recognized only in relation to restricting use of light, air, support, or stream water from an artificial flow (only appurtenant).
No natural or automatic right to a negative easement.
Easement Appurtenant (Transfer):
An easement appurtenant is transferred with the land to which it relates.
Consequently, the benefit is transferred automatically with the transfer of the dominant estate, and the burden likewise is transferred automatically with the transfer of the servient estate.
Easement in Gross (Transfer):
Traditionally, an easement in gross could not be transferred, but most courts now look to the intent of the parties to determine whether the parties intended only the holder of the easement in gross to enjoy the right, in which case it is not transferable, or whether the parties intended the holder to be able to transfer it.
Easements in gross are not divisible without the consent of all parties holding an interest.
A non-exclusive easement may not be divided up, but an exclusive easement may be.
However, the division of an exclusive easement in gross is subject to the one-stock rule.
Under this rule, the use that the transferees make of the easement collectively is limited by the use that the transferor made of the easement (i.e., his “stock”).
Commercial easements in gross are transferable and assignable.
Easement Terminations:
END CRAMPSS
- Estoppel
- Necessity
- Destruction
- Condemnation
- Release
- Abandonment
- Merger (Unity of Ownership)
- Prescription
- Severance
- Sale to a Bona Fide Purchaser
Release:
An easement can terminate by a writing that expressly releases the easement right and complies with the Statute of Frauds.
Merger:
The easement is terminated when title to the easement and title to the servient tenement become vested in the same person.
Under such circumstances, the easement is not automatically revived unless a new grant is made.
Note that the easement does not merge if the owner acquires less than fee title, and merger is applicable only to easements appurtenant.
Severance:
Any attempt to convey an appurtenant easement separate from the land it benefits terminates (or “severs”) the easement.
Abandonment:
An easement can be terminated if the owner of the easement acts in an affirmative way that shows a clear intent to relinquish the easement right.
Mere statements of intent without affirmative conduct are insufficient to constitute abandonment, but they may constitute estoppel.
Mere non-use of the easement is also not sufficient to extinguish the easement right.
Destruction & Condemnation:
Destruction of a structure on the servient estate by natural forces can terminate an easement if the easement is related to the structure (e.g., access to a lighthouse).
Condemnation of the servient estate also terminates an easement.
Note that some courts permit the holder of the easement to receive compensation because of the condemnation.
Prescription:
If an easement holder fails to protect his easement against a trespasser for the statutory period, his easement right may be terminated by prescription.
Estoppel:
If the servient estate owner changes position to his detriment in reliance on statements or conduct of the easement holder that the easement is abandoned, the easement holder may be estopped from asserting the easement.
Sale to a Bona Fide Purchaser:
If a written easement is granted but not recorded against the servient estate, the easement is not enforceable against a bona fide purchaser (i.e., a purchaser with no notice of the easement).
The easement is not actually terminated, but rather it becomes unenforceable.
Scope of Easement:
The scope of an easement is not defined by its physical characteristics, but by its purpose (terms or conditions that created it).
If a change in an easement originally created by grant or reservation increases the burden on the servient land but does not change the nature of the burden, the increased burden will not be enjoined unless the easement is expressly limited to a particular use or purpose.
However, a use different from that which existed at the creation of the easement and which imposes an additional burden is prohibited.
A change in the degree of a burden is insufficient to constitute an additional burden.
An owner of land subject to an easement may use the easement for any lawful purpose so long as such use does not interfere with the easement holder’s rights to use the easement, but does not have responsibility to maintain it.
The owner of a dominant estate has the sole responsibility to maintain and repair the easement without making a material alteration to the character of the easement that interferes with the use and enjoyment of the servient estate by its owner