Express easements created by “grant” or “reservation”?
Must comply with formalities for the creation or transfer of an interest of land. For it to be an express easement it must satisfy the SOF (it must be in writing). The SOF applies only to express easements.
What is an affirmative easement ?
An affirmative easement grants the holder the right to do things on the servient estate that they would not otherwise be permitted to do.
How to recognize it: It permits an affirmative act on the servient land (e.g., crossing the land, laying wires). The owner of the servient estate has no duty to act, only a duty to refrain from interfering with the holder’s use
What is a negative easement?
A negative easement gives the holder the right to prevent the possessor of the servient estate from performing acts on their own land that they would otherwise be legally entitled to perform.
How to recognize it: It does not authorize the easement holder to do anything on the servient land; rather, it restricts the servient owner’s use (e.g., forbidding them from building a structure that blocks light)
What are 4 traditionally recognized negative easements?
In early common law, negative easements were generally limited to these four types:
(1) Light: Protecting the flow of light to the easement holder’s windows.
(2) Air: Protecting the flow of air in a defined channel.
(3) Support: Lateral or subjacent support of a building.
(4) Artificial Stream: Protecting the flow of an artificial stream to the holder’s land. (Note: Today, most negative restrictions are handled as restrictive covenants, except for conservation easements).
What is an appurtenant easement?
An appurtenant easement is one that attaches to and benefits a particular parcel of land rather than a specific individual. It passes automatically with the transfer of the benefited land.
Servient estate: The parcel of land that is burdened by the easement.
What is an easement in gross? How is it different than an appurtenant easement?
An easement in gross does not attach to or benefit a particular parcel of land.
Instead, it is personal to the easement owner.
Unlike an appurtenant easement, which must “follow the dog” (the dominant estate) when transferred, an easement in gross benefits a person or entity (like a railroad or utility company) regardless of land ownership.
What is a profit?
The right to take material (such as soil, wood, or minerals) from the land of another.
In other words…
(aka profit-a-prendre) is the right to take something off another person’s land that is a part of the land or a product of the land.
What is a license?
Permission to enter and use land possessed by another (like a ticket to a theater or permission to hunt). It resembles an easement but is usually revocable at the will of the landowner, whereas an easement is of a more permanent nature.
Basically permission to go on the land belonging to the licensor - and are vey common. .
What is an easement by grant vs. an easement by reservation?
Why might that be important in the event of a dispute?
Easement by Grant: Created when the owner of the servient estate expressly grants the right to another person (the grantee).
Easement by Reservation: Created when a landowner conveys a parcel of land to another but retains (reserves) the right to use that land for themselves.
Importance in a Dispute:
Construction against the Grantor: In a dispute over ambiguity, courts often construe deeds in favor of the grantee and against the grantor to “derogate as little as possible from the extent of the grant”. If a grantor conveys a fee simple but attempts to vaguely reserve an easement, the court might rule in favor of the grantee having unencumbered fee title.
Stranger to the Deed: This distinction is critical because traditionally, a grantor could not create an interest in a third party via a reservation
The “Stranger to the deed” rule?
At common law - and still the MAJORITY view, an easement can be reserved only for the grantor. Therefore, an attempt to reserve an easement in favor of a third party is void.
Implication: A grantor can reserve an easement for themselves, but if they try to reserve an easement for someone else (e.g., “I sell to B, reserving an easement for C”), that reservation is traditionally invalid.
The way to get around that would be for the grantor to first reserve the easement for herself and then transfer it to the third party.
Minority view: an easement may be reserved in favor of a third party.
Modern Status: While some states (like California) have abandoned this rule because it frustrates the grantor’s intent, many states still uphold it to protect bona fide purchasers and avoid ownership conflicts.
Note 9 p. 397
What is a dominant estate?
The parcel of land that benefits from the easement.
What is a servient estate?
The parcel of land that is burdened by the easement.
Express easement by grant?
This arises when the servient owner grants an easement to the dominant owner.
Example 7 | p.380
Express easement by reservation?
This arises when the dominant owner grants the servient owner, but retains an easement over that property
Example 8 | p.380
Creating an Express Easement?
(1) It must be in writing (Satisfy the SOF);
(2) It must identify the parties to the easement;
(3) It must describe the servient land and the dominant land (if any);
(4) Describe the exact location (or as close as possible) of the easement on the servient land; and,
(5) State the purposes for which the easement may be used, in other words the scope of the easement (is it for foot traffic only, is it for ingress/egress, is it exclusive (the use of the easement) to the dominant holder or may the servient owner grant additional folks the right to use the easement.
What happens when there is a dispute between the parties as to whether the initial transfer/conveyance was a …. selling of a strip of land / property (a conveyance in fee) OR was it creating an easement (granting the right to use land still owed)
Factors that courts will consider (non-exhaustive):
1. The amount of consideration;
2. The particularity of the description of the property conveyed ;
3. The extent of the limitation upon the use of the property;
4. The type of interest which best serves the manifested purpose of the parties (the intent of the parties);
5. The peculiarities of wording used in the conveyance document ;
6. To whom the property was assessed and who paid taxes in it;
7. How the parties to the conveyance, or the heirs or assigns, have treated the property.
