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Flashcards in Property 3 - Land Use Deck (45):

Creation of Easement - Expressly

Express conveyance of an easement. Has to be in writing to satisfy the Statute of Frauds.


Easement by Prescription

Adverse possession of the easement world. Physical element has to be actual, open, and notorious use of the property. Then with a hostile intent continuously for the statutory period.


Easement by Conveyance (Easement Implied into a Conveyance)

1. There must have been common ownership of the dominant and servient estates and then a severance.
2. There must be a quasi-easement; the easement was in place and in use at the time of the severance.
3. It must be reasonably necessary that this easement continue.


Easement by Necessity

1. Common ownership of the dominant and servient estates, and then a severance.
2. Strict or absolute necessity.


Easement by Public Use

The public has been using the easement for the statutory period.


Servient Estate

The parcel of land that is burdened by an easement.


Dominant Estate

The parcel of land that is benefited by the easement.


Easement Appurtenant

An easement that benefits a parcel of land.


Easement in Gross

Easement that benefits an individual or an entity.


Scope of an Easement

What the holder of an easement can do with it. If the easement was created expressly and the document creating it details a specific use, then that is the only use to which an easement can be put. Absent that situation, a holder of an easement is allowed to make reasonable use of the easement under the circumstances.


Surcharging the Easement

Using the easement beyond what is considered to be reasonable.


Maintaining an Easement

The holder of the easement may do what is reasonably necessary to maintain the easement, even if it interferes with the servient owner's use of his property.


Termination of Easement - Destruction of the Servient Estate

This generally terminates the easement unless the holder of the servient estate intentionally destroys it to get rid of the easement.


Termination of Easement - Merger of Title to the Dominant and Servient Estates

If at any time the same person acquires ownership of both, the titles merge and the easement is destroyed. If the owner then sells the servient estate, the easement is not automatically recreated.


Termination of Easement - Written Release

The holder of an easement can issue a written release giving up the rights to that easement.


Termination of Easement - Abandonment

Requires: (1) abandoning the easement and (2) words or conduct indicating an intent to abandon.


Termination of Easement - Estoppel

A situation where the easement holder engages in conduct which leads the owner of the servient estate to believe the easement has been abandoned, and the servient estate holder detrimentally relies on that.


Termination of Easement - Severance

Applies to an easement appurtenant only. Any attempt to sever the easement from the dominant estate terminates the easement.


Termination of Easement - Prescription

Servient estate owner interferes with the use of the easement continuously for the statutory period. (Like adverse possession.)


Termination of Easement - Sale of Servient Estate to a BFP

When someone pays value for the property and takes it without notice of the easement, the easement is terminated.


Termination of Easement - End of Necessity

Applies only to an easement created by necessity. If at any time after it is created, the necessity ends, then the easement automatically terminates.



"Super easement." The right to go on someone else's land and take something off of it. Can only be created expressly or by prescription.



A privilege to go onto another's land. It's not an interest in the land, it's a personal property right. Can be oral. Freely revocable at any time.


License Coupled With an Interest

if a person acquires personal property on the land and then is given permission to go on the land to get the personal property, that license can't be revoked.


Executed License / Easement by Estoppel

When someone is given permission to use another's land, and they expend money in reliance on that permission. The license is irrevocable until they have gotten the value of that expenditure out of the license. How long that is is a question of fact.


Covenants that Run with the Land vs. Equitable Servitudes

Covenants lead to dollar damages while equitable servitudes lead to injunctions.


4 Elements to a Covenant that Runs with the Land

1. Touch and Concern
2. Intent
3. Notice
4. Privity


Covenants - Touch and Concern

Servient estate - for T&C the covenant has to reduce the enjoyment of the land.
Dominant estate - for T&C the covenant has to increase the use and enjoyment of the land.


Covenant - Affirmative Restriction

Where the covenant requires the servient estate to DO SOMETHING


Covenants - Negative Restriction

Where the covenant requires the servient estate to not do something.


Covenants - Intent

It must be intended that this restriction run with the land to future owners. In a majority of jrdx, if T&C is established, the element of intent is presumed.


Covenants - Notice

Servient estate only. The current owner of the servient estate must take with notice (any of the 3 kinds) of the restriction.


Covenants - Horizontal Privity

Requires privity of contract in connection with the land:
1. Grantor-grantee privity.
2. Landlord-tenant privity.
3. Mortgagor-mortgagee privity.


Covenants - Vertical Privity

Privity of estate. On the SERVIENT SIDE, the grantor must be transferring ALL of his or her ownership interest to the grantee. Doesn't matter if it's all interests on dominant side.


Equitable Servitude

3 requirements: 1. T&C 2. Intent 3. Notice. Those are all established in the same way they are in covenants.


5 Ways to Terminate Covenant or Equitable Servitude

1. Merger.
2. Written release. (By the owner of the dominant estate.)
3. Abandonment coupled with words or conduct showing intent to abandon.
4. Estoppel. If the D estate does something that leads the owner of the S estate to believe the restriction will no longer be enforced and the S
estate detrimentally relies on that.
5. Changed circumstances so that the reason behind the restriction is no longer valid.


Statute of Frauds

Applies to both covenants and equitable servitudes. EXCEPTION: Can be oral when it is the implied reciprocal servitude. Works with negative restrictions only and requires (1) must be shown that the intended restriction is part of a common scheme or plan for development of the area; (2) the current owner of the servient estate must take with notice of the restriction.


Zoning Ordinances

Not really a property issue. You can challenge them under due process, equal protection, or first amendment.


Eminent Domain

The government may take a fee simple interest in property, an easement, or an interest in an estate in the property.



Is an unreasonable interference with the use and enjoyment of land.


Right to Lateral Support

An absolute right. If neighbor deprives you of the support, they're strictly liable. However, if you've improved your land you have to ask whether the subsiding of your land would have occurred with or without the improvement. If it would have occurred even without the improvement: still strict liability. If the weight of the improvement caused the land to subside, the digger is liable only if they were negligent in taking away the support.


Right to Subjacent Support

Absolute right. Digger is strictly liable for damage to your land and any damage to improvements that existed at the time the sub-surface rights were granted. For any improvements added after sub-surface rights were granted, digger is only liable if he was negligent.


Water Rights

Riparian (Majority) - anyone with land that touches the water has a right to make reasonable use of the water.
Prior Appropriation (Minority) - First in time first in right.



1. If seller severs crops before delivering it to buyer -- sell of goods governed by UCC.
2. If seller sells the crops still attached to land - sell of real property.


3 Things of Easements

1. Creation
2. Scope
3. Termination