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Bar Review: Real Property > Easments, Profits & Licences > Flashcards

Flashcards in Easments, Profits & Licences Deck (13):
1

A person whose interest in land gives him the right to use someone else’s land independent of his ownership or possession of his own tract holds:

A. An easement appurtenant
B. A license
C. A servient tenement
D. An easement in gross

D. An easement in gross

A person whose interest in land gives him the right to use someone else’s land independent of his ownership or possession of his own tract holds an easement in gross. An easement gives the holder the right to use a tract of land but no right to possess it. The land burdened by the easement right is called the servient tenement. An easement appurtenant, by contrast, benefits its holder in his physical use or enjoyment of his own tract of land. The land benefitted by the easement is called the dominant tenement. Unlike an easement, a license is not an interest in land, but is merely a privilege to go upon another’s land.

2

May the public acquire a prescriptive easement in private land?

A. Yes, if the public’s use of the land is open and notorious, adverse, and continuous for the statutory period
B. No, because easements in public lands cannot arise by prescription
C. Yes, if the public uses the land at the landowner’s invitation
D. No, because exclusive use is required to acquire an easement by prescription

A. Yes, if the public’s use of the land is open and notorious, adverse, and continuous for the statutory period

Yes, the public may acquire a prescriptive easement in private land if the public’s use of the land is open and notorious, adverse, and continuous for the statutory period. The process for acquiring an easement by prescription is analogous to acquiring title to property by adverse possession, except that the use need not be exclusive (i.e., the user may share the use with the owner or other easement claimants). Adverse use means a use made without the landowner’s permission. Thus, if the public uses the land at the landowner’s invitation, the public will NOT acquire a prescriptive easement. Because exclusive use is NOT required to acquire an easement by prescription, a claimant may share the use with the true owner or other members of the public. Therefore, the public may acquire a prescriptive easement in private land if members of the public use the land in a way that meets the requirements for prescription outlined above, even if other claimants also are making use of the same portion of the land. Although easements in public lands cannot arise by prescription, the public may acquire a prescriptive easement in private land as described above.

3

If the holder of an easement uses it beyond its legal scope, the easement is __________.

A. Increased
B. Terminated
C. Surcharged

C. Surcharged

If the holder of an easement uses it beyond its legal scope, the easement is surcharged. The holder of an easement has the right to use another’s land (i.e., the servient tenement), but has no right to possess the land. The scope of an easement is determined by the reasonable intent of the original parties. Generally, courts assume that the parties intended the easement to meet the easement holder’s reasonable present and future needs. An easement is said to be surcharged if the holder uses it in a way that exceeds its legal scope. If the holder of an easement uses it beyond its legal scope, the easement is NOT terminated. If the servient estate is surcharged, the servient owner may enjoin the excess use and possibly sue for damages if the land has been harmed. However, such use does not automatically terminate the easement or give the servient owner a power of termination. If the holder of an easement uses it beyond its legal scope, the easement’s scope is NOT increased. When the scope or location of an easement has been specified, these specifics will govern. However, when the scope of an easement has been set out only in general language, courts assume that the parties intended a scope that would have foreseen reasonable changes in the use of the dominant estate. In either event, once an easement’s legal scope has been determined, it will not be increased to meet the easement holder’s needs. Thus, the servient owner may enjoin excess use as explained above.

4

Is an easement extinguished when the easement and the servient tenement become owned by the same person?

A. Yes, but only if the duration of the servient tenement is equal to or longer than the duration of the easement
B. Yes, but the easement will be revived automatically if the tracts are later separated
C. No, unless the parties expressly so provide
D. No, because a person may own an easement on her own land

A. Yes, but only if the duration of the servient tenement is equal to or longer than the duration of the easement

Yes, an easement is extinguished when the easement and the servient tenement become owned by the same person, but only if the duration of the servient tenement is equal to or longer than the duration of the easement. By definition, an easement is the right to use another’s land for a special purpose. A person may NOT own an easement on her own land, and thus an easement is extinguished by complete unity of ownership between the interests held in the easement and in the servient tenement. This occurs automatically, NOT because the parties expressly so provide. Furthermore, the easement will NOT be revived automatically if the tracts are later separated.

5

What is the effect of an easement holder’s using the easement beyond its legal scope?

A. The servient landowner may enjoin the use.
B. The servient landowner may terminate the easement.
C. The scope of the easement is increased to meet the holder’s needs.
D. The easement automatically terminates.

A. The servient landowner may enjoin the use.

The effect of an easement holder’s using the easement beyond its legal scope is that the servient owner may enjoin the use. The holder of an easement has the right to use another’s land (the servient tenement), but has no right to possess the land. The scope of an easement is determined by the reasonable intent of the original parties. Generally, courts assume that the parties intended the easement to meet both present and future reasonable needs of the easement holder. If an easement holder uses the easement in a way that exceeds its legal scope, the easement is surcharged. The servient landowner’s remedy is an injunction of the excess use, and possibly damages if the servient land has been harmed. Using the easement beyond its legal scope does not cause the easement to automatically terminate or the scope of the easement to be increased to meet the holder’s needs, nor can the servient landowner terminate the easement.

6

By granting an affirmative easement across her land, a landowner grants:

A. A right to use that portion of her land
B. A revocable privilege to use that portion of her land
C. A right to possess and enjoy that portion of her land
D. Ownership of that portion of her land

A. A right to use that portion of her land

By granting an affirmative easement across her land, a landowner grants a right to use that portion of her land. An easement is a nonpossessory interest in land. The holder of an affirmative easement has the right to use another’s land but has no right to possess and enjoy the land; that is, ownership of the land itself does not pass. The owner of the servient tenement continues to have the right of full possession and enjoyment subject only to the limitation that he cannot unreasonably interfere with the right of special use created in the easement holder. In contrast, a landowner who grants a revocable privilege to use a portion of her land grants a license. Unlike easements, licenses are generally revocable at the will of the licensor and are not interests in land.

7

Someone whose interest in land benefits her in her possession of another tract of land holds __________.

A. An easement appurtenant
B. A servient tenement
C. An easement in gross
D. A license

A. An easement appurtenant

Someone whose interest in land benefits her in her possession of another tract of land holds an easement appurtenant. The holder of an easement has the right to use another’s land (i.e., the servient tenement), but has no right to possess that land. If the holder is benefited in her possession of her own parcel of land (i.e., the dominant tenement), the easement is deemed appurtenant. If the holder is not benefitted in her possession of her own parcel, the easement is deemed in gross. A license is not an interest in land; it is merely a privilege to go upon another’s land. Moreover, it need not benefit the licensee in her capacity as the owner of another tract of land.

8

Is a long period of nonuse sufficient to terminate an easement?

A.No, because the release of an easement interest must satisfy the Statute of Frauds
B. Yes, if it continues for the statutory period
C. Yes, if it is accompanied by other evidence of intent to abandon the easement
D. No, because an easement may not be terminated by prescription

C. Yes, if it is accompanied by other evidence of intent to abandon the easement

Yes, a long period of nonuse is sufficient to terminate an easement if it is accompanied by other evidence of intent to abandon the easement (e.g., the easement holder erects a permanent structure blocking off the easement). However, a long period of nonuse on its own, even if it continues for the statutory period, is insufficient to constitute abandonment. An easement MAY be terminated by prescription. However, this is not accomplished through the easement holder’s nonuse. Rather, one must interfere with the easement through long continued possession and enjoyment of the servient estate in a way that would indicate to the public that no easement right existed. This is analogous to a landowner losing title to land by adverse possession. Generally, the release of an easement interest must satisfy the Statute of Frauds. However, a release is only one way to terminate an easement. A release from the owner of the easement interest to the owner of the servient tenement is effectively a conveyance and must satisfy the formalities required to create an easement. By contrast, an easement may be abandoned if the holder manifests an intent never to use the easement again, evidenced by either physical acts or oral expressions of a desire to abandon accompanied by a long period of nonuse.

9

An oral attempt to create a perpetual easement results in the creation of a __________.

A. quasi-easement
B. license
C. nonpossessory interest in land
D. nonfreehold estate

B. license

An oral attempt to create a perpetual easement results in the creation of a license. The Statute of Frauds requires that any conveyance of an interest in land (including an easement interest) of duration greater than one year must be in writing to be enforceable. If a party attempts to create an easement of indefinite duration orally, the result is the creation of a license, i.e., a revocable privilege to go upon the land of another. Because a license is not an interest in land, the Statute of Frauds does not apply. An oral attempt to create a perpetual easement does not result in the creation of a nonpossessory interest in land. Neither does it result in the creation of a nonfreehold estate, which is a type of possessory interest in land (e.g., a lease). As stated above, it results in the creation of a license, which is not an interest in land. An oral attempt to create a perpetual easement does not result in the creation of a quasi-easement, which is an easement-like use made of one part of a unitary tract of land to benefit another part. A quasi-easement will arise if, before the unitary tract is divided, the use that exists on the “servient part” is reasonably necessary for the enjoyment of the “dominant part” and the parties intended the use to continue after division of the property. It is called a “quasi-easement” because a landowner cannot hold an easement in her own land.

10

If an easement is said to be surcharged, this means:

A.The easement was terminated by operation of law
B. The easement holder paid valuable consideration to the servient landowner
C. The easement’s legal scope was interpreted to accommodate the holder’s future reasonable needs
D. The easement’s legal scope was exceeded

D. The easement’s legal scope was exceeded

If an easement is said to be surcharged, this means the easement’s legal scope was exceeded. The holder of an easement has the right to use another’s land (i.e., the servient tenement), but has no right to possess the land. The scope of an easement is determined by the reasonable intent of the original parties, and when the scope has been specified, these specifics will govern. However, when an easement’s scope has been set out only in general language, courts will interpret it to accommodate the holder’s present and future reasonable needs. In either event, if the easement holder uses the easement in a way that exceeds its legal scope, the easement is surcharged. The servient landowner may enjoin the excess use and possibly sue for damages if the land has been harmed. However, the easement does NOT terminate by operation of law, nor does such use give the servient owner a power of termination. If an easement is said to be surcharged, this does NOT mean the easement holder paid valuable consideration to the servient landowner, but rather that he exceeded its legal scope.

11

When may the grant of a perpetual easement be enforced as a license?

A. At the grantor’s option
B. When it fails to satisfy the Statute of Frauds
C. Never
D. Always

B. When it fails to satisfy the Statute of Frauds

The grant of a perpetual easement may be enforced as a license when it fails to satisfy the Statute of Frauds. Any conveyance of an interest in land (including an easement interest) of a duration long enough to bring into play a particular state’s Statute of Frauds (typically one year) must be memorialized in writing to be enforceable. If a party attempts to create such an easement orally, the result is the creation of a license. The grant of an easement may NOT be enforced as a license at the grantor’s option. Unlike an easement, a license is not an interest in land. It is merely a privilege to go upon another’s land, generally revocable at the will of the licensor. Thus, the grant of an easement is NOT always enforced as a license, but rather only when that grant is legally deficient under the Statute of Frauds, as explained above.

12

What is the result when the grant of a perpetual easement fails to satisfy the Statute of Frauds?

A. The grant is a nullity
B. The grant creates an easement of limited duration
C. The grant creates a perpetual easement
D. The grant creates a license

D. The grant creates a license

When the grant of a perpetual easement fails to satisfy the Statute of Frauds, the result is that the grant creates a license. Any conveyance of an interest in land (including an easement interest) of a duration long enough to bring into play a particular state’s Statute of Frauds (typically one year) must be in writing to be enforceable. If such a grant fails to satisfy the Statute of Frauds, the grant is NOT a nullity, but it instead creates a license (i.e., a revocable privilege to go upon the land of another). It does NOT create a perpetual easement or an easement of limited duration.

13

Which of the following acts will terminate a profit but not an easement?

A. Misuse of the interest
B. Nonuse of the interest
C. Oral release of the interest
D. Written reconveyance of the interest to the landowner

A. Misuse of the interest

Misuse of the interest will terminate a profit but not an easement. The holder of a profit has the right to go upon another’s land and take the soil or a substance of the soil (e.g., minerals, timber), but has no right to possess and enjoy the land. As with easements, excessive use of a profit surcharges the servient estate. In the case of an easement, the servient landowner may enjoin the excess use, but the easement does not automatically terminate. In the case of a profit, however, the result of the surcharge is to extinguish the profit. An oral release of the interest, by itself, generally is insufficient to terminate either a profit or an easement. Profits and easements may be terminated when the owner of the interest releases it to the owner of the servient tenement. The release effectively serves as a reconveyance of the interest to the landowner and thus must be executed with the same formalities required to create the interest. This often means the release must comply with the Statute of Frauds. Thus, an oral release generally is ineffective, and a written reconveyance generally is effective, for both interests. Note, however, that an oral release may become effective through estoppel or when combined with nonuse of the interest for a long period of time. Nonetheless, mere nonuse, absent other evidence of intent to abandon it, is insufficient to terminate either interest.