Flashcards in Servitudes Deck (55)
What are examples of nonpossessory interests in land that create a right to use land possessed by someone else?
easements, profits, covenants, and servitudes
What is an easement?
an easement holder has the right to use another's tract of land for a special purpose (to lay a pipe, access road, etc), but has no right to possess or enjoy that land (presumed to be of perpetual duration)
What are the different types of easements?
affirmative, negative, appurtenant, and in gross
What is an affirmative easement?
holder is entitled to make affirmative use of the ST
What is a negative easement?
entitle holder to compel the possessor of ST to REFRAIN from engaging in an activity on the servient estate (historically: for light, air, subjacent support, and flow of artificial stream); today = restrictive covenants
What is an easement appurtenant?
when the ease. benefits the holder in his physical use or enjoyment of another tract of land; need two tracts of land (dominant and servient)
What is the servient tenement?
the estate BURDENED by the easement
What is the dominant tenement?
the estate BENEFITTED by the easement
Does an ease. app. pass w/ the transfer of the benefitted land?
Yes, it does not need to be mentioned in the conveyance
Does the burden of the easement also pass w/ the servient estate (app)?
Yes, unless new owner is a BFP w/ no actual or constructive notice of the ease.
What is an easement in gross?
holder of this easement acquires right to use the ST (has nothing to do with another parcel of land; not two tracts); benefits the holder rather than the parcel (right to swim)
Is an ease. in gross transferable?
No; however, one that serves an economic or commerical interest (right to erect Billboard) is transferable (personal ones are not)
What are the methods of creating an easement?
Prescription, express grant or reservation, implication, and necessity
How do you create an ease. by express grant?
1. needs to be in writing; 2. signed by holder of ST (unless duration is brief, 1 year or less, to be outside SOF); and 3. must comply w/ formal req. of deed
How do you create an ease. by express reservation?
arises when grantor conveys title to land but reserves the right to continue to use the tract for a special purpose (cannot reserve for someone else = void)
How do you create an ease. by implication?
Created by op. of law = exception to SOF; there are three kinds of ease. by implication
Ease by implication: Implied from existing use
Implied if: 1. prior division of a single tract; 2. apparent and cont. use exists on servient part; 3. reasonably necessary for enjoyment of dominant part; and 4. ct. determines parties intended use to cont. after division
Ease by implication: implied w/o existing use
arises in two situations: 1. subdivision plat (lots sold in sub in ref. to plat showing streets leading to lots = buyers of lots have impl. ease. to ues streets); 2. profit a pendre (holder of profit has imp. ease to pass over surface of land and use it to extract product)
Ease by implication: necessity
landowner sells portion of land and by division deprives one lot of access to a public road or utility line
How do you create ease. by prescription?
Similar to acquiring prop. via adverse possession; the use must be: 1. open & not (discoverable upon inspection); 2. adverse (no permission); 3. cont. and uninterrupted; and 4. for statutory period
What is the scope of an easement?
courts assume ease. was intended to meet both present and future needs of DT (could be widened); but enlarging scope cannot unreasonably burden ST
Does overuse or misuse of ease. terminate it?
No - the appropriate remedy is an injunction against that misuse
Does the owner of ST have a duty to make repairs to ease?
Yes if sole user; no if both parties are using - ct will apportion repair costs
How do you terminate an easement?
1. based on stated conditions; 2. merger 3. release 4. abandonment 5. estoppel 6. prescription 7. necessity 8. condemnation/destruction
How does an ease. terminate under merger?
same person acquires ownership of easement and ST, DT and ST merge; even there is a later separation, the ease. does not auto. revive
How does an ease. terminate under release?
by deed of release from owner of easement to owner of ST
expression in writing
How does an ease. terminate under abandonment?
holder demonstrates by physical action (building a structure that blocks access to ease) an intent to permanently abandon the ease; merely expressing wish to ab. is not enough, neither is nonuse; oral expressions combined w/ long period of nonuse may be sufficient
so expression + physical action
How does an ease. terminate under estoppel?
if owner of ST changes position in reasonable reliance on representations made or conduct by ease. holder
How does an ease. terminate under prescription?
must be adverse, cont. interruption of use for prescriptive period (gen. 20 yrs)