Easements

Front 1

Easement

Back 1

□ The incorporeal interest (non-possessory) in the land of another to use that land for some purpose

□ Use the land for some purpose

□ Neither owner/possessor of servient estate may interfere with the easement holders right

□ Subject to SoF [easements are interests in land, and thus must be in writing if for longer than a year]

Front 2

Affirmative v. Negative Easements

Back 2

Affirmative Easement - easements holder (dominant estate) may enter upon servient estate and make affirmative use of it [lay pipe, water rights, etc.]

Negative Easement -
Holder may compel possesso

Front 3

Easement Appurtenant

Back 3

□ Between 2 adjoining tracts

□ Burdens one estate (servient) for the benefit of the adjoining estate (dominant)

□ Runs with the land, continues in successive grants in both estates whether or not expressly mentioned in grant

Front 4

Easement in Gross

Back 4

□ Land burdened (servient), for the personal right (in gross) without a dominant estate

General Rule:
Easements in gross[EiG] do not run with the land

Commercial EiG
Do run with the land [Ex. billboard, telephone lines, etc.]

Front 5

Profits a Prendre

Back 5

□ The right to take something off another's land which is part of the land

□ When PaP is granted, an easement will be implied to insure its use

[Ex. minerals, crops, hunting]

Front 6

License

Back 6

□ A privilage to go upon the land of another (licensor) for a specific purpose

□ Generally revocable at the will of licensor (unlike an easement)

□ Exception - when a license has incurred a considerable expense in reliance of the license, the license may become an easement which will continue as long as the nature of it calls for

Front 7

4 Main Types of Easements

Back 7

1. Appurtenant
2. in Gross
3. in Grant
4. in Reservation

Front 8

6 Ways to Create an Easement

Back 8

1. Express Creation (in writing)
2. Implied Easements
3. Easement by Prescription
4. Custom Doctrine
5. Easement by Dedication
6. Easement by Estoppel

Front 9

Expressed Creation of an Easement

Back 9

□ an expressed right created in a deed
□ in either gross or appurtenant
□ created in either grant or reservation

Grant:
- conveyed by grant or deed
- in favor of the grantee or transferee
- granting one's easement to someone else

Reservation:
- easement reserved by the grantor
- grantor conveys property, but reserves right for some sort of access
- Cannot be made in favor of 3d party

Front 10

What is an expressed creation of an easement by reservation?

Back 10

□ Easement reserved by the grantor

□ Grantor conveys property, but reserves the right to some sort of access

□ To grantor only, cannot be made in favor of a 3rd party

Majority View:
Easement in favor of 3rd party - reserved right does not run with land

Minority:
Look to the intent of the grantor

Front 11

Implied Easements

Back 11

□ Law implies easement because of circumstances (necessary to enjoyment of estate)

□ Idea is that party intended to put into grant but forgot

□ May be by grant or reservation

Front 12

What are the Implied Easement Necessity Requirements?

Back 12

Implied in Grant (no prior use)
- absolute/strict necessity

Inplied in Grant (prior use)
- Reasonable necessity
- Usually never deals with roadway
[Ex. irrigation canal]

Implied in Reservation (no prior use)
- Absolute/strict necessity

Implied in Reservation (prior use)
- Absolute/strict necessity

Front 13

What is a Strict/Absolute Necessity?

Back 13

□ landlocked parcel

□ unified tract of land
□ divided, and transferred in part
□ absolutely necessary at the time of conveyance
□ necessity must continue
[when necessity ceases, so does the easement]

Front 14

Quasi Easements

Back 14

□ A right-of-way as it existed when there was unity of ownership in a tract of land

□ right existed before separation into 2 different tracts of land

General Rule
1. If right already existed, and easement is in grant
2. Reasonable necessity only - transfer carries the greatest possible estate

HOWEVER
- If in reservation, its construed against the grantor
- Must show strict necessity to recognize easement

Front 15

Scenic Easements

Back 15

□ Absolute necessity doesn't apply - used for roadways only

□ No implied right to look across someone else's property or allow someone to look across your property

Exception - "Spite Rule" or "Spite-Fence Rule"
[May not block your neighbor via a spiteful action]

Front 16

Easement by Prescription

Back 16

May be either Public [adverse use by public at large] or Private [adverse use for private use]

Elements - OAC UCE

Front 17

Easement by Prescription Elements

Back 17

1. Open & Notorious
2. Adverse (without permission)
3. Continuous (only consistent w/ owners needs)
[TX - 10 yrs]
4. Uninterrupted
5. Claim of Right
6. Exclusive (actual owner doesn't use it)

Front 18

What does "run with the land" mean?

Back 18

the use (ex. easement) will continue through successive grants in both estates whether or not expressly mentioned in the grant