Easements

Question 1

Definition of Easement

Answer 1

A grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land.

Examples:

• The right to lay utility lines on another’s land
• The right of way over another’s land
• The right to tap into a neighbor’s drain.

Question 2

As it pertains to the type of restrictions available, easements are one of these two types.

Answer 2

Affirmative or negative

Question 3

Servient tenament

Answer 3

Parcel that bears the burden of the easement.

Question 4

Dominant tenement

Answer 4

Parcel that derives the benefit of the easement.

Question 5

Affirmative Easement

Answer 5

The right to go onto and do something on servient land.

Mose easements are affirmative

Question 6

Four ways to create an affirmative easement

Answer 6

PING

• Prescription
• Implication
• Necessity
• Grant

Question 7

Affirmative easement by grant

Answer 7

• Affirmative easement created by express grant.
• An easement to endure for more than one year (most, if not all
• easements) must be in writing due to SoF.
• That writing is called a deed of easement.

Question 8

Affirmative easement by implication

Answer 8

• a.k.a easement implied from existing use
• particular use that occurs on a parcel that ought to survive division of the parcel.

Question 9

How to create an affirmative easement by implication

Answer 9

Courts will imply an easement from that prior or existing use if:

• the use was apparent at the time of division, and
• the parties expected that the use would survive division,
• because it is reasonably necessary to the now dominant tenement’s use and enjoyment.

Question 10

Example of affirmative easement by implication

Answer 10

• A owns two lots, Lot 1 and Lot 2. Lot 1 is hooked up to a sewer drain located on lot 2.
• A sells lot 1 to B, with no mention of B’s entitlement to continue to use that sewage drain located on A’s remaining lot.
• Court will imply affirmative easement for use of the sewage drain because A and B knew about it, and B can’t reasonably install his own.

Question 11

Affirmative Easement by Necessity

Answer 11

• implied when grantor conveys a portion of its land with no way out except over some part of the grantor’s remaining land.
• The majority of states require a showing of reasonable necessity to imply an easement by necessity.

Question 12

Affirmative Easement by Prescription

Answer 12

• Easement acquired by analogy to adverse possession. (COAH)
• e.g. A cuts across B’s lawn to get to A’s parcel. A is a trespasser. Over time, however, she may be transformed into the holder of an affirmative easement by prescription, by satisfying the COAH elements.
• Can’t have permission to use the land, must be hostile

Question 13

Negative Easement

Answer 13

Entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.

Question 14

Easement by Prescription- VA Time periods

Answer 14

• Time period for creation of a prescriptive easement is 20 years.
• In an action involving the provision of water and sewer services, the period is 10 years.

Question 15

Negative easements are generally recognized only in these four categories.

Answer 15

LASS:

• Light
  
  • e.g. compelling neighbor to build in a way that impedes my access to sunlight
• Air
  
  • e.g. compelling neighbor to refrain from putting something on his land that would impede my land’s access to free flow of air
• Support, and
  
  • e.g. compelling neighbor to refrain from excavating land in a way that would compromise my land’s subjacent support.
• Streamwater from an artifical flow.
  
  • e.g. compelling neighbor to refrain from doing anything on his property that would interrupt or impede my premises’ access to that flow.

A minority of states recognize a negative easement for the right to a scenic view.

Question 16

How a negative easement is created

Answer 16

• No natural or automatic right to a negative easement.
• Must be created expressly in a signed writing.
• Writing is called a deed of easement

Question 17

In terms of the kind of benefit the holder receives, an easement is either of one of these two types.

Answer 17

• Appurtenant to land
• Held in gross

Question 18

Easement Appurtenant

Answer 18

Easement that benefits the easement holder in his physical use or enjoyment of his own land.

Question 19

Requirements for an easement appurtenant

Answer 19

“It takes two”

Two parcels of land must be involved:

• A benefited parcel, which derives an

advantage or gain thanks to the easement. (dominant tenement)

• A burdened parcel, which suffers the imposition of the easement. (servient tenement)

Question 20

Examples of Easements Appurtenant

Answer 20

• A grants B a right of way across A’s land so that B can more readily reach B’s land. B has an easement appurtenant to B’s dominant tenement.
• Farmer Jack has a right to tap into a sewage drain located on farmer Pete’s land, to more effectively drain Jack’s land. Jack has an easement appurtenant to Jack’s dominant tenement.

Question 21

Transferability of Easements Appurtenant

Answer 21

• The benefit of the appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance.
  
  • e.g. A sells dominant tenement to X. X now holds dominant tenement.
• The burden of the appurtenant easement also passes with the servient land, UNLESS the new owner is a bona fide purchaser without notice of the easement.
  
  • notice has same definition as land sales kx
  • e.g. A sells servient land to X. X has notice of easement. Easement passes. If X does not have notice of easement, it does not pass.

Question 22

Easements in Gross

Answer 22

• Easement that confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land.
• Servient land is burdened, but there is no benefited or dominant tenement.

Question 23

Examples of Easements in Gross

Answer 23

• The right to place a billboard on another’s lot
• The right to swim in another’s pond
• The utility company’s right to lay power lines on another’s lot

Question 24

Transferability of Easements in Gross

Answer 24

• An easement in gross is not transferable unless it is for commercial purposes.
  
  • e.g. A’s easement in gross to swim in Mr. Smith’s pond is non-transferrable. But, if she is fishing for bait in the pond for Starkist Tuna company, it is transferable.

Question 25

How the scope of an easement is defined

Answer 25

* set by the terms or conditions that created it. * Unilateral expansion is not permitted. * e.g. B's easement for Blackacre cannot be unilaterally expanded to Greenacre.

Question 26

The ways an easement can be terminated

Answer 26

**END CRAMP** * Estoppel * Necessity * Destruction * Condemnation * Release * Abandonment * Merger * Prescription

Question 27

Easement termination by estoppel

Answer 27

* the servient owner materially changes position in reasonable reliance on the easement holder’s assurances that the easement will no longer be enforced. * e.g. A tells B that A will no longer be using her right of way across B’s parcel. In reasonable reliance, B builds a swimming pool on B’s parcel, thereby depriving A of the easement. In equity, A is now estopped from enforcing the easement.

Question 28

Easement Termination by necessity

Answer 28

* Easements expire as soon as the necessity ends. * Exception: if the reason for the easement was necessary, and thus the parties created by express grant, it will not end once the need ends. * e.g. O conveys a portion of his ten-acre tract to A, with no means of access out except over part of O’s remaining land. A and O agree in writing that A will enjoy an easement over a strip of O’s remaining acreage due to necessity. City then builds public roadway that affords A access out. Easement still stands bc it was in writing.

Question 29

Easement Termination by Destruction

Answer 29

Destruction of the servient tenement, other than through the willful conduct of the servient owner, will terminate the easement.

Question 30

Easement Termination by Condemnation

Answer 30

Condemnation of the servient tenement by governmental eminent domain power will end the easement.

Question 31

Easement Termination by Release

Answer 31

* Release given in writing by the easement holder to the servient landowner. * The written release is the most customary way to terminate an easement.

Question 32

Easement Termination by Abandonment

Answer 32

* Easement can be terminated by holder abandoning it. * The easement holder must demonstrate intent to never make use of the easement again through physical action. * Mere nonuse/oral representations not enough to terminate. * e.g. A has a right of way across B’s parcel. A erects a structure on A’s parcel that precludes her from ever again reaching B’s parcel.

Question 33

Easement Termination through the Merger Doctrine

Answer 33

* a.k.a unity of ownership * The easement is terminated when title to the easement and title to the servient tenement become vested in the same person.

Question 34

Easement Termination by Prescription

Answer 34

* Easement can be terminated when the servient owner interferes with it in accordance with the elements of adverse possession. * Must have a pattern of use by the servient tenement owner that is tantamount to Continuous interference with the easement, Open and notorious interference, and Actual interference that is Hostile to the easement holder.

Question 35

**VA** law on Easement Termination

Answer 35

In addition to the other ways to terminate, an easement in Virginia will be terminated if the original purpose for which the easement was created no longer exists.