Flashcards in Easements (non-possesory rights) Deck (73):
name other non possesory rights?
water, air, support, easements, promises, real covenants
Restatement of Property 450
1) an interest in land possessed by another allowing limited use or enjoyment of the land.
2) the interest can be protected from interference by others
3) the interest is not subject to the will of the title holder
4) the interest is not a right extended to all non-possesors of land
5) the interest can by created by conveyance
can an easement be created by conveyance?
yes (part 5 of easement def)
since the interest can be protected, it is a ____ ____?
The interest is not subject to the will of the ____ _____?
its protected, if an owner "could" terminate than its a license (a creature of contract law)
Does the right extend to all non-possesors of land?
some non-poss rights are extended to all adjoining parcels (like support rights)
-some obtained because of being adjacent to a body of water ( riparian rights)
-some regulated on ad hoc basis (nuisance law)
The interest can by created by ______.
you must be able to voluntarily create the right for it to be a property right
allows is HOLDER to do things on the OTHERS land
allows holder to PREVENT the LAND POSSESSOR from doing certain things
Benefits the TITLE HOLDER of a neighboring parcel
(looking at owner of easement to determine)
benefits & burdens neighboring estates
Easement in Gross
Benefits someone who DOES NOT hold title to a neighboring estate. (benefits someone who does not have land attached)
one that benefits from an appurtenant easement
One that is subject to an easement (has to tolerate limited use by dominant estate)
Profits a prendre
the RIGHT of a NON title to enter someone else's land to REMOVE specific kinds of items from it. (ex mineral rights, agriculture)
Which do courts favor, gross or appurtenant easements?
appurtenant.(cuz run w/ land)
(many jurisdictions LIMIT gross to utility lines & railroads)
What will be given more importance specific language or general language?
What will courts examine when considering easements?
HOW the land is being USED. (mitchell v. castellaw)
Trend w/gross easements?
IF right is individual (not railroad, utility) then the right is to the person alone and NOT TRANSFERABLE
(want to avoid feudal land law again)
continuum of interest
from estate(property to--> easement(property)--> to license (contractual)
think estate think ______?
(control & use it how want to-no limits)
think easement think ______?
(allowable, not whatever you choose)
think license think ______?
(@will, can't insist on possession)
an irrevocable license???????
nutz. most juris do not recognize.
blurs distinction btwn a license & easement
Essay possible ""
(Stoner v. Zucker)
"as the plaintiff KNEW of the improvements and WAS benefitting form them, the plaintiff will be estopped from exercising termination rights"
statute for frauds
easements have to be in writing
A way to avoid the the statute of frauds
Partial Performance Doctrine
Stover v. Zucker
a permission granted verbally but not mentioned in writing
legal principal prevent a party from denying or alleging a certain fact on account of partys previous conduct or allegations.
Stoner v. Zucker
Zucker had permission to enter land to construct an irrigation ditch. Plaintiff revoked license, def continued to enter & make repairs on ditch, had spent more than $7000 on ditch.
RULE: License became an easement . Plaintiff knew of the improvements and was benefitting from them. Plaintiff can't exercise termination rights.
Easement can be created:
expressly by _____ and
by ____, _____, & _____?
expressly by DEED, necessity, Implication, prescription
To establish an "easement by necessity" the dominant estate holder must show ___&____?
-an original UNITY of ownership btwn dominant & servient
-there are no other means available to access a public road except over servant estate
An easement by necessity survives inchoate until when?
appurtenant easement and a transfer of title to the estate happens, what then?
This will also transfer the easement
does an easement in gross benefit a neighboring estate?
No. An individual benefits
the estate that benefits from an easement?
Is there a dominant estate in easement in gross?
the estate burdened by the easement.
Which easements are not favored
easements in gross
Is a license a property interest?
NO.....its a contract right
A license is subject to the will of whom?
The land title holder
A transfer of property interest that includes a right of possession?
A lease or other estate
the land title holder needs to be prevented from taking advantage of the license.
how are easements by implication created?
-by reference to a map which shows an easement
-by how land is used before is conveyed/pre-existing use
easement by implication/pre-existing use elements:
1. unity of ownership
2. before the severance of ownership, the use by the dominant estate of land inside the servant
3.use was APPARENT, OBVIOUS, OPEN & PERMANENT
4. claimed easement is NECESSARY & beneficial to dominant estate
Unity of ownership (easement by implication)
"common ownership of the dominant & servient parcels followed by a conveyance of one or the other."
"necessary & beneficial" rule of easement by implication.
necessary means 'important'; NOT critical, NOT convenient
Apparent, open, obvious & permanent....?
(easement by implication)
Courts slippery w/ "obvious" cuz some aren't-like sewer pipes.
Court SERIOUS about permanent
only difference between Adverse Possession & Prescriptive Easement is _______?
"exclusivity" (req.of adv poss)-
how to prevent an easement by implication or necessity?
include the right language in the deed.
Easement by Implication is Restatment of Propery #__?
474: 8 factors:
whether claimant is conveyor or convey
whether claim is made against a simult. convey
extent of necessity (more than convenience)
manner land used before conveyance
extent of which the use of land was KNOWn to parties
-Under a claim of right
-for a period of more that that given in the SOL
use must be apparent & visible (not secretive)
use must be against the title of the estate holder
use must be constant
uninterruped- prescriptive easement
can't start & stop, be continuous & regular
"under a claim of right"**
intentional trespassers maybe excluded.
courts tend to move away from subj claim of right & focus on objective-acting like had a claim of right.
multiple people can ____ simultaneously, but can't ____simultaneously?
USE, can't posses.
difference between use & possession
most time if one claims adverse possession will also claim _________?
Can sunlight access be a prescriptive easement?
Hard to prove, but anything that can be an easement can be used as a prescriptive easement.
why is lack of consent critical in prescriptive easement?
if had permission then a license exists.
when can a prescriptive easement develop out of a license?
Use continues after:
-license was revoked or
-license repudiated by licensee
how courts look at consideration (from restatement factors)
did the claimant pay full market value? (not expecting an easement) if was not injured financially & knew wouldn't have access to a rd?
Whether claimant is conveyor or convey?
most important of 8 factors of restatement 474;
-cuz if u conveyed & failed to draft property then uphill climb
what can keep a prescriptive easement from developing?
transforms Adverse into License-permissive
Are trees fixtures?
no. are agricultural products
Does Acquiescence mean license or permission?
no, not in active sense. It means "passive assent" or submission. it means quiescence. "consent by silence"
consent by silence or passive assent?
Aquiescence rule: The servant estate holder must:
1) KNOW of the adverse use and
2) not object to the prescriptive use continuing
The servient estate holders objection or permission prevents what _____?
a prescriptive easement from vesting. (acquiescence)
knowing about the adverse use but saying nothing is
Beebe v. DeMarco
r: a prescriptive easement can be established by clear and convincing evidence of continuous adverse use of another’s real property.
Continuous does NOT equal constant, depends on users state of mind & used consistently as need requires. (property, path for boat, used every season)