Servitudes: Easements, Profits, and Licenses (Ch. 11) Flashcards
Easement appurtenant
An easement that is a benefit for anyone who owns the dominant estate. Easements appurtenant run with the land.
Reserving an easement in favor of a third party…
Exceptions
An exception is a pre-existing easement. A grantor may never except an easement in favor of a third party. He may reserve (create) a new easement, but he may not convey to a third party an exception that already existed.
Statute of Frauds requirements for Express Easements
1) Identify the property
2) Describe the easement to designate it with reasonable certainty
3) Show grantor’s intent to convey
4) Contain grantor’s signature
Easement implied by prior use
1) grantor makes a conveyance of a physical part only
2) prior to the conveyance grantor made use of a quasi-easement on that physical part
3) the use was continuous
4) the use was apparent
5) after the conveyance, the continued use is necessary
Easement by Necessity
1) Grantor makes a conveyance of a physical part only
2) After the conveyance, it is strictly necessary to use the easement (end of necessity ends easement; non-use of easement does not terminate the easement)
Easement by Prescription
1) actually uses the easement
2) under a claim of right (recall J1, J2, J3)
3) the use of the easement was exclusive, meaning it was not shared w/ the general public
4) the use of the easement was uninterrupted and continuous
5) easement was used w/ the knowledge and acquiescence (but not permission) of the owner
6) such use has continued for at least 20 years
Negative Easements
light, water, air and support
Common law WATER Rights
J1) Riparian Rights System: An upstream owner only may make only reasonable use of the water vis a vis the downstream owner
J2) Law of Prior Appropriation: Based on the Law of Finders, an upstream landowner has the right to make any and all beneficial use of the water
Right to Lateral support:
If A does activities on A’s land such that…
neighbor B’s house collapses –> A liable for negligence
neighbor B’s land collapses – A strictly liable
Right to Subjacent Support
Where B owns rights underneath A’s land, if B does subterranean activities such that…
a) A’s house, above, collapses – B liable for negligence
b) A’s land, above, collapses – B strictly liable
Transferability of easements (Easements in Gross)
Easements in gross are assignable provided that the parties evidenced intent to make the easement assignable.
ex. O conveys “to A, his heirs, and his assigns” an easement to swim in the lake on Blackacre. Because O evidence intent to allow assignability, A may assign this right to A1”
Transferability of Easements (Easement appurtenant)
(1) Easements appurtenant are not assignable or transferrable because easements appurtenant cannot be severed from the dominant estate.
Example. B has granted his neighbor W an easement to walk across Blackacre. (W’s estate is the dominant estate.) W can not assign this right to a hiker, because to do so would be to sever the right from the estate.
(2) Cannot benefit non-dominant land.
J1: remedy for misuse of easement = injunction
J2: remedy for misuse of easement = money damages
Licenses
A transient or impermanent interest, as opposed to a full interest in land. A license is a personal privilege to perform an act on another’s property.
Licenses are revocable.
Ways for a license to end:
a) A license ends when the licensor dies.
b) A license ends when the licensee attempts to assign.
c) A license ends when the licensor conveys his estate.
