Easements

Question 1

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What is an Easement?

Answer 1

An interest in the land that entitles its holder to a limited use/ enjoyment of the land of another.

1. Easements do not keep a title from being marketable but it still gives the buyer the right to rescind the contract after a reasonable time to cure.
2. BLR: An easement holder has the right to enter on the serviant track but is required to maintain and care for it.

Question 2

2 types of Easements

Answer 2

1. Easement Appurtenant
2. Easement In Gross

Question 3

1. Easement Appurtenant

Answer 3

A. Occurs between Adjoining/ connected land.

B. They run in perpetuity with the land until terminated.

C. There is
* Dominant Track: Benefited by the easement

*Servient Track: Burdened by the easement

D. Freely Assignable

Question 4

2. Easement In Gross

Answer 4

A. Has nothing to do with adjoining/ connected land

B. They DO Not run with the land, the easement dies when owner is changed or dies.

C. REQUIRES A WRITING

D. Deals with utility and there is NO dominant track, only a serviant track. (Benefits a particular person)

E.Only assignable for Business/ commercial use.

Question 5

3 ways to create an Easement Appurtenant

Answer 5

1. Express Creation
2. Creation by Implication
   2(a). Easement by strict necessity
   2(b). Easement by prior usage.
3. Easement by Prescription

Question 6

Express Creation

Answer 6

1. Expressly stated in the reservation clause of a deed which must be terminated expressly and will show up in a title search
2. BLR: Express Appurtenant easement will run with the land until termination.

Question 7

2. Creation by Implication

Answer 7

A. Easements not created in writing but created by law implicitly.

The land must start with a common owner.

2 Types:
1. Easement by Necessity (Universal)
2. Easement by Prior Usage

Question 8

1. Easement by Strict Necessity (Universal)

Answer 8

A. BLR: Allows the easement holder a right of way over an adjoining land because it is the only means of ingress and egress to important landmarks, so if a land is landlocked, a right of way is automatically implied by law as a necessity.

B. Must start with a common grantor

C. How do you determine which parcel they would get an necessity easement for? (Accessibility, Which is closest to the road?, Least burdensome for the servant tract holders, Up for negotiation)

Question 9

2. Easement by Prior Usage (Not Universally accepted)

Answer 9

BLR: These can be implied where the use is reasonably necessary AND was obviously in existence at the time of the sale.

A. To establish this easement, one must prove:
1. Prior common ownership of both dominant and servient track until this conveyance.

2. The owner used one part of his tract to benefit the other.

B. The easement should continue unless the new buyer shows good cause why it shouldn’t continue.
1. Good cause to terminate the easement can be the person failing to maintain and care for the easement.

Question 10

3. Easement by Prescription

Answer 10

A. If the elements have been met then someone can claim a limited right of way by prescription. (Can be used concurrently with the owner)

THEY RUN WITH THE LAND

a. Openness: known or should have known they are there and Visible and apparent for the world to see. (Property lines underground can be the dispute.)

b. Continuously: Statute of Limitations is never the statutory period. (Seasonal use is acceptable)

c. Hostile: Without permission (Silence does not mean permission.)

d. Actual: Physically being on the land. (Tacking is allowed.)

Question 11

Scope and Transferability of an Easement

Answer 11

1. Broadening an Easement (Can BILATERALLY be broadened)
2. Changing Usage/ Location of an Easement (Can BILATERALLY be changed
3. Good repair (Easement holders are required to keep the easement in good repair

Question 12

Termination of an Easement 6 Ways.

Answer 12

1. When the express terms come to an end
2. If you have a written release from the easement holder.
3. An easement by strict necessity terminates also when the necessity comes to and end (Will lie dormancy in case it is needed again)
4. Doctrine of Merger (An easement will terminate when the dominant and servient track merge together so there is no more need for an easement)
5. If someone else succeeds in taking it by prescription
6. Abandonment (Tested the Most)
   a. Holder of easement (dominant track ) abandoned his usage of it but Mere non use is not abandonment**.

b. The person claiming abandonment must prove abandonment by clear and convincing evidence.

c. The length of time the holder stopped using the easement is irrelevant if he did not take affirmative steps to indicate abandonment of the easement.
Ex. building a wall/ building a fence