Property Law Outline - Easements

  1. Definitions
    1. An easement is a grant of an interest in land that entitled a person to use land possessed by another.
    1. Distinctions
      1. Affirmative v. Negative
        1. Affirmative
          1. Owner of easement has a right to go onto the land of another and do some act.
          2. Ex. O grants A right of way across O's property; A has an affirmative easement.
        1. Negative
          1. Owner of easement can prevent the owner of the servient land from doing some otherwise legal act on the servient land.
          2. Limited to easements for light, air, lateral support, or flow of an artificial stream. 
            1. Some courts have held easement for view to be a valid negative easement.
            2. Limited because most other situations can be handed by equitable servitudes.
      1. Appurtenant v. In Gross
        1. Appurtenant
          1. An incident of ownership of the dominant tenement, and is not personal to the original holder.
            1. Ex. O grants A an easement to cross O's land to get to a public road.
          1. Passes with the possession of the dominant tenement.
            1. No need for deed to expressly mention easement.
          1. Most states have a constructional preference for easements appurtenant over easements in gross.
            1. An easement appurtenant increases the value of the dominant land, presumably by more than it decreases the value of the servient land.
            2. An easement in gross does not increase the value of any land and decreases the value of the servient land.
  1. In Gross
    1. Personal to the holder and independent of his possession of any land.
      1. Ex: O grants A an easement to erect and maintain billboards, or to lay utility lines.
    1. Because there is no dominant tenement, successors to the holder's land do not have the easement.
    1. Most courts hold that successors to the servient tenement are subject to the easement.
    1. Only commercial easements in gross are generally assignable.
  1. Creation of Easements
    1. Express Easements
      1. Must satisfy the Statute of Frauds (be in writing, signed by grantor).
        1. If not in writing, only oral, grantee has a license to use the land.
        2. A license is revocable at any time unless there is an estoppel claim.
      1. May be created by grant or by reservation.
        1. Express Grant - O conveyed a right of way over O's land to A.
        2. Reservation - O conveyed Blackacre to A but reserved a right of way across the land.
      1. Common law does not allow reservation to a 3rd party. Minority of jurisdictions allow now. Covenants, however, can be used to benefit a 3rd party.
  1. Easement by Implication (a.k.a. By Operation of Law)
    1. Created by operation of law, not by written instrument.
    2. Easement Implied from Prior Use
      1. Looking to give effect to the original intent of the owners.
        1. Since they forgot/failed to expressly negotiate these uses and they would have if they had thought about them, courts can give effect to these intentions.
      1. Criteria
        1. The two parcels were under single ownership,
        2. There was a permanent or continuous pre-subdivision use,
          1. Courts interpret continuous to include a permanent physical change in the land for a particular use.
            1. Ex. The improvement of a roadway by paving is a permanent change in the land, and thus a continuous use, even if the road is not used every day.
        1. The use was apparent upon reasonable inspection, AND
          1. A non-visible use may be apparent.
            1. If could have been discovered by hiring someone to do an inspection, held to be apparent.
            2. Ex. Underground drains may be apparent if the surface connections would put a reasonable person on notice of their presence.
        1. The easement is reasonably necessary.
          1. Most jurisdictions look at reasonable necessity, not strict necessity.
          2. Relevant factors include cost and difficulty of establishing an alternate use.
    1. Easement Implied from Necessity
      1. Reasons for easements by necessity
        1. Public policy requires a way of access to each separate parcel of land.
        2. Because access is essential to use, the parties intended to create an easement but overlooked putting it in the deed.
      1. Criteria
        1. The dominant tenement is landlocked from public road or some utility line.
        2. The servient and dominant tenements were owned by a single owner at the time of the conveyance giving rise to the necessity, AND
          1. The necessity must exist at the time the property is divided.
        1. An easement is necessary.
          1. Common law required absolute necessity.
          2. Most courts today require a showing of strict necessity; minority require only reasonable necessity.
      1. Most states do not require the dominant tenement to pay for the necessary easement.
      2. Ex. Reese v. Borghi (p.734)
        1. Land was sold to two parties, landlocked one party. Party used a path to get to road; path was blocked by a house built by other party.
        2. Held that easement by necessity existed. Does not matter if landlocked party knew their land would be landlocked at the time they bought it. An easement by necessity cannot be negated by the express intent of the parties.
  1. Creation by Prescription
    1. An easement can be acquired by an adverse use for a requisite period (usually tracks adverse possession law).
    2. Criteria
      1. Actual
      2. Adverse
        1. Majority do not look at state of mind for good faith.
          1. Some require good faith belief that he has the right to use the land.
        1. Fails if the use is permissive.
          1. Ex. Finley v. Botto (p.741)
            1. Two families owned apartment buildings 4 feet apart. Area between was used by tenants in one building to get to laundry room. Other building constructed a wall where the walkway was.
            2. Held that since the use of the land for a walkway was permissive, no prescriptive easement exists. Courts look to the relationship between the parties. If neighborly goodwill is found, not adverse.
      1. Open and notorious; AND
        1. Use must be made with no attempt of concealment.
        1. For underground, non-visible uses, if it could be reasonably discovered on inspection, this requirement is satisfied.
      1. Continuous and uninterrupted for the prescriptive period.
        1. Continuous does not mean constant. Seasonal uses are found to be continuous (picking raspberries on land during raspberry season).
        1. Tacking is allowed to meet the statutory time requirement; same requirements for tacking as adverse possession usually (privity).
        1. How to reset the clock for prescriptive easements
          1. Easiest for a landowner to defeat a prescriptive easement by completely allowing the use one day out of a year.
          2. Insufficient in some jurisdictions to allow use, must disallow.
            1. Some jurisdictions find that a protest by the landowner to the prescriptive user to be sufficient to break the uninterrupted requirement, reset the clock.
            2. Other jurisdictions require the landowner to actually stop the use for a day.
            3. Can always bring suit for injunction to reset clock.
    1. Cannot use prescription to get a negative easement.
      1. This is because it would be unfair to give a would-be dominant tenement a prescriptive right that B could not prevent from arising.
  1. Determining/Widening the Scope of Easements
    1. The scope of an easement mostly depends on the intention of the parties.
    2. Methods of determining this intent sometimes vary according to the type of easement.
      1. Express Easements
        1. Courts will look to the language of the instrument, together with surrounding circumstances to determine parties' intent.
        2. Easements of way (access) are given a scope that permits it to meet the needs of the dominant tenement as it normally develops.
          1. Ex. Faus v. City of Los Angeles (p.726)
            1. Private individuals gave an easement to the city to put a light rail tracks on their land to provide transportation service to the city. Light rail ran for a while; later, rail was scrapped, city constructed a road on the land.
            2. Held that the conveyance should be assumed to have intended to accommodate future needs. The net effect is the same, improvement of public transportation/access
      1. Implied Easements
        1. Easements Implied from Existing Use
          1. Scope is generally the same as an express easement.
          2. Changes that reasonably might have been expected or that are necessary to preserve the utility of the easement are permitted.
        1. Easements Implied from Necessity
          1. The extent of necessity determines the scope.
      1. Easements by Prescription
        1. More difficult to increase the burden of an easement by prescription than any other kind of easement.
        2. The uses that gave rise to the easement can continue, but there is no basis for assuming the parties intended the easement to accommodate future needs.
          1. Ex. O might not have objected to A crossing O's land to pick apples on A's land but would have objected to A driving a truck onto O's land to pick apples.
          2. Look to see whether there is an increase in burden on the servient land.
    1. Subdivision of Dominant Easements
      1. Appurtenant Easements
        1. If the dominant estate is subdivided, each subdivided lot has a right to easements appurtenant to the dominant estate.
        1. CAVEAT: However, the servient estate is not to be burdened to a greater extent than was contemplated at the time the easement was created and is necessary to accommodate normal development of the dominant estate.
          1. Courts are split; one held that subdivision of 4 lots into 40 created unreasonable burden. Other held that subdividing 126-acre tract not unreasonable burden.
      1. In Gross Easements
        1. Can be divided or apportioned only if in gross easement is exclusive (easement holder is the only one who enjoys the right).
        2. Cannot be divided or apportioned if the in gross easement is non-exclusive (easement holder and the servient owner both enjoy the use granted in the easement).
        3. Ex. Easement holder of right to hunt on land can only bring others on the land to hunt if the easement is exclusive.
    1. Benefits for Non-Dominant Land
      1. The dominant owner cannot increase the scope of the easement by using it to benefit a non-dominant tenement.
      2. Ex. An easement granted for the benefit of lot 1 cannot be used for the benefit of lot 2 even if the lots are adjacent and the same person owns both lots.
  1. Changes in the Location/Width of the Easement
    1. Majority Rule
      1. If an easement has been granted in a specific location, the location cannot be changed by one party acting unilaterally even if there is no change in burden/convenience.
      2. If the width of an easement is specified in the grant, or if it existed at the time of the grant so that it can be inferred that the parties intended it to remain the same width, the easement cannot be widened without the consent of the servient owner.
    1. Restatement Rule
      1. The servient owner may relocate the easement or make reasonable changes in its dimension when necessary to permit normal development of the servient estate, provided the changes do not unreasonably interfere with the easement holder's use.
  1. Transfer of Easements
    1. Easements Appurtenant
      1. The benefits of any easements appurtenant are transferred with the land when the dominant land is transferred.
        1. Easements appurtenant are thought of as attached to the dominant land.
        2. Thus, even passes to adverse possessors.
      1. The burdens of any easements appurtenant are transferred with the land when the servient land is transferred.
      2. Does not matter if the easement is mentioned specifically in the deed.
    1. Easements In Gross
      1. At common law, courts held that the benefits of easements in gross were not assignable.
      2. General rule now…
        1. The benefits of a commercial easement in gross are assignable.
          1. Would be unfair for a utility company to lose its easements when it merged with another company.
          2. Exclusive commercial easement in gross may subdivide or apportion as long as not exceedingly greater burden on servient estate.
        1. The benefits of a noncommercial easement in gross are generally nonassignable; they are only assignable if the parties so intend.
  1. Termination of Easements
    1. For express easements, can always be terminated in accord with its express terms.
    1. For easements implied by necessity, terminates when the necessity disappears.
    1. "Changed conditions" equitable doctrine cannot generally be invoked to terminate an easement.
      1. However, an easement that relies on a servient structure terminates if the structure is destroyed through no fault of the servient owner.
      2. Absent language in the original grant, easement is not revived if the structure is rebuilt.
    1. By Unity of Title
      1. If title to the easement and title to the servient tenement are owned by the same person, the easement terminates.
      2. Is not revived by subsequent separation of the tenements into two ownerships.
    1. By Act of Dominant Owner
      1. Release
        1. Owner of an easement may release the easement to the servient owner by written instrument. (statute of frauds applies)
      1. Abandonment
        1. Occurs when the easement holder stops using the easement and independently manifests an intent to abandon the easement. (unequivocal intent to abandon)
        2. Non-use alone is never enough to terminate an easement.
        3. Can be demonstrated by...
          1. Oral statements
          2. Nonuse coupled with failure to maintain the easement
          1. Permitting the easement to be blocked by others
          1. Establishing a substitute easement elsewhere
        1. Ex. A has an easement to use a common driveway located half on O's land. A builds on the part of the driveway located on his land which makes use of the driveway impossible. The easement is abandoned.
      1. Estoppel
        1. Can be terminated if:
          1. The easement's holder's words or conduct indicate that she will no longer use the easement; AND
          2. The servient owner's reasonably relies on the easement holder's representations; AND
          3. The servient owner's position materially changes.
      1. Excessive Use
        1. A few courts have held that an easement can be terminated by the easement holder's excessive use of the easement.
          1. Most states, however, will only terminate a profit for excessive use.
          1. Can be remedied by damages and injunctive relief.


  1. By Act of Servient Owner
    1. Prescription
      1. If the servient owner interferes with an easement in an adverse manner (e.g., by erecting a fence across a roadway), the servient owner can extinguish the easement.
      1. Elements are same as creation of an easement by prescription.
        1. Because the servient owner generally may use the easement, use alone will not result in acquisition by prescription.
        1. Instead, the servient owner must block the easement holder from using the easement, or otherwise demonstrate exclusive control of the land, for the prescriptive period.
    1. Sale to a Bona Fide Purchaser
      1. Sale of servient tenement to BFP for value terminates the easement if the grantee meets the requirements of the recording act.
        1. Prescriptive easements not affected by conveyances of servient tenement.
        1. Also probably doesn't terminate an easement by necessity or implication.
  1. Termination by Third Parties
    1. Condemnation
      1. Most common method of termination.
      1. Government takes servient tenement by eminent domain.
      1. Owner of the easement is entitled to compensation.
        1. Value of easement is measured by the diminution in the value of the dominant tenement.
    1. Tax Sale
      1. Some states have held that easements are terminated when servient tenement is sold at a tax sale.
        1. However, this really should have no effect on the easement.
      1. Many other states do not follow this rule.