Scope & transferability of Easements (non-loss/ easements) Flashcards Preview

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Flashcards in Scope & transferability of Easements (non-loss/ easements) Deck (20):

"Tisch was granted an easement" What's wrong w/ this?

NOT "granted". Was "pre scripted" an easement. Careful w/language


Kresge v. Winkelmen

r: easements can only be used by estate that is appurtenant & dominant. a prescriptive easement cannot be used to access property other than the property to which the easement is appurtenant.(owned by appurtenant lot then can only be sued by appurtenant lot)
Barbershop/retail store both used alley.


Why can't the character of the use be changed form that which was orig. granted?

If allowed ALL uses then it would be an estate and not an easement.


what must you look for if trying to get a prescriptive easement?

enough passage of time (20 years)


3rd limit of USE of an easement

if the character of the use changes in a way that imposes an unreasonable burden on the servient estate, the changes will be enjoined


How do many jurisdictions limit easements in GROSS?

(utility co)
by making them personal, non-transferrable interests.
There trend is away from this position


The TRANSFER of an easement form the current dominant owner to a GREATER # of owners is.........?

Divisibility of an Easement


why is divisibility a problem?

it can increase the use of the easement


An unreasonable increase of the use is know as ________?

Surcharging it


Sakansky v. Wein

Rule: an easement holder has absolute rights to use the easement in the location specified irrespective of the reasonableness of demanding to use the easement in its specified location.


First rule of Interpreting an easement

1) READ it, implement wording that created it


Second rule of Interpreting an easement

2) Any gaps? the court will fill them using the "rule of reasonableness" to determine appropriate balance between the dominant & servient estates (can help keep you outta court)


Traditionally, could an easement be moved?

no. It is a property right and couldn't be moved w.out consent of dominant estate holder.


Restatement 3rd of Property 4.8(3)

Trend today:
allows the servient estate holder to move the easement if it won't harm the dominant estate holder. (MASS rule too.)


What is the time standard for interpreting an easement

Contemporary Standard. invokes the rule of reasonableness!
ex) horse& buggy--car
telephone line-cable lines


Does the rule of reasonableness go one way?

No. a two-way street. both the dominant & servient estate holders rights will be construed reasonably.


If dominant estate holder wishes to open the pipeline.....

it must be done to minimize harm to the servient estate holder


"can't render the servient estate significantly less _____?

rules of reasonableness


A change of a use will be enjoined if it....?

1) imposes an unreas. burden on servient estate
2) unreas. interferes w/the dominant use of the easement


if the use is a surcharge it will be _____?