Easements:
nonpossessory interest in land,
creating a right to use land possessed
by someone else.
Types of Easements
• Affirmative
– the holder is entitled to make beneficial use of the servient
tenement.
• Negative
– entitle the holder to compel the possessor of the servient tenement
to refrain from engaging in an activity on the servient estate (e.g.,
building a structure in excess of three stories), are generally
confined to only four easements: (i) for light, (ii) for air, (iii) for
lateral and subjacent support, and (iv) for flow of an artificial
stream.
Easement Appurtenant
• Benefits the holder in his physical use or enjoyment of
another tract of land.
• Two tracts:
– dominant tenement (the estate benefitted by the easement)
– servient tenement (the estate subjected to the easement right).
• Passes with the transfer of the benefitted land, regardless
of whether it is mentioned in the conveyance. The burden
of the easement also passes automatically with the servient
estate unless the new owner is a bona fide purchaser with
no actual or constructive notice of the easement.
Easement in Gross
• Holder acquires a right to use the servient tenement
independent of his possession of another tract of land.
– i.e., the easement benefits the holder rather than another parcel.
• An easement in gross for the holder’s personal
pleasure (e.g., right to swim in the pond on Blackacre) is
not transferable.
• Easement that serves an economic or commercial interest
(e.g., the right to erect billboards on Blackacre) is
transferable.
NONPOSSESSORY INTERESTS
Real covenant/
Easement License Profit Equitable Servitude
Definition A grant of an Permission to go on Right to take part of Promise to do or not to
interest in land that to another’s land the land or a do something on the
allows someone to product of the land land
use another’s land from another’s land
Writing Generally required. Not required. Required. Required.
Note: An invalid Exception: Equitable
oral easement is a servitude may be
license implied from common
scheme of development
of residential
subdivision
Termination Stated Conditions Usually revocable at Same as Easement Release
Release will. Merger
Merger May be irrevocable Condemnation
Abandonment if coupled with an Also equitable defenses
Estoppel interest or if may apply to
Prescription licensor estopped by enforcement of
Eng of Necessity licensee’s servitude.
expenditures
Creation of Easements
• Express Grant
• Express Reservation
• Implication
Express Grant
• Any easement for more than one year must
be in writing and signed by the holder of the
servient tenement. A grant of easement
must comply with all the formal requisites
of a deed
Exhibit C
DESCRITION OF HOUSE LATERAL AND SEPTIC TANK EASEMENT
LOCATION:
Being a portion of the same premises conveyed to the Grantor(s) herein by deed
dated…Permanent Right-of-Way for a 6” diameter house lateral located 100 feet
from property line to septic tank and including septic tank; Permanent Right-of-
Way is ten (10) feet wide each side of as-built lateral for a total width of twenty (20)
feet and ten (10) feet wide along outer perimeter of septic tank. The above right-of-
way widths described are reduced where existing structures are present on or before the
date of this agreement. In these areas the right-of-way widths shall extend to within one
(1) foot of structure existing on or before the date of this agreement.
This Deed ,
Made the Fourth day of …
Between …
Witnesseth, that in consideration of … the grantors do hereby grant and convey to the
said grantees and their heirs and assigns.
All their right-title and interest for a certain piece or parcel of land located in the
Township of …, described as follows
Beginning at the main road leading from Reyburn to Hunlock
Creek a piece of land twenty (20) feet wide which is now a road
running from the place of intersection above mentioned to Cragle
Hill across the lands of now or formerly of Robert Davenport:
The same to be used for road purposes hereafter with the right to
travel and work the same at all times.
Being the same conveyed the Fifth (5th) day of …
Express Reservation
• An easement by reservation arises when a
grantor conveys title to land, but reserves
the right to continue to use the tract for a
special purpose.
This Deed ,
Made the Thirteenth day of …
Between …
Witnesseth, that in consideration of … said grantors do convey All that certain parcel
located in … bounded and described as follows: …
Containing … acres more or less
EXCEPTING AND RESERVING one-half of all the coal and other
minerals in, under and upon the premises described, together with the
right to mine and remove the same as the same has been excepted and
reserved in prior deeds in the chain of title.
Being the same premises …
Implication
• An easement by implication is created by
operation of law; it is an exception to the Statute
of Frauds. Aside from the easement automatically
implied with any grant of a profit , there are two
types of easements by implication:
1. Easement Implied from Existing Use
(“Quasi-Easement”)
2. Easement Implied Without Any Existing Use
Easement Implied from Existing
Use
• An easement may be implied if:
a) Prior to the division of a single tract,
b) An apparent and continuous use exists on the
“servient” part,
c) That is reasonably necessary to the enjoyment
of the “dominant” part , and
d) The court determines that the parties intended
the use to continue after division of the land.
Easement Implied Without Any
Existing Use
• Subdivision
– Where lots are sold in a subdivision with reference to a
recorded plat or map that also shows streets leading to
the lots, buyers of the lots have implied easements to
use the streets to access their lots.
• Profit a Prendre
– The holder of the profit a prendre has an implied
easement to pass over the surface of the land and to use
it as reasonably necessary to extract the product.
Easement by Necessity
• An easement by necessity arises when a
landowner sells a portion of his tract that
has no access to a public road except over
the remaining land of the seller. The owner
of the servient parcel (the seller) has the
right to locate the easement.
Prescription
• Analogous to adverse possession.
• To acquire a prescriptive easement, the use must
be:
(i) Open and notorious (i.e., discoverable upon
inspection);
(ii) Adverse (without the owner’s permission); and
(iii) Continuous and uninterrupted;
(iv) For the statutory period.
Termination of Easements
• Stated Conditions
• Unity of Ownership
• Release
• Abandonment
• Estoppel
• Prescription
• Necessity
• Condemnation and Destruction
Stated Conditions
• The original easement grant may specify
when or under what conditions the
easement will terminate.
Unity of Ownership (Merger)
• If the same person acquires ownership of both the
easement and the servient estate, the estate merges
and is destroyed. Even though there may be later
separation, the easement will not be automatically
revived. The unity must be complete (e.g., the
holder of the easement must acquire an interest in
the servient tenement of equal or greater duration
than the duration of the easement privilege).
Release
• An easement (including an easement in
gross, which is otherwise inalienable) can
be terminated by a deed of release from the
owner of the easement to the owner of the
servient tenement.
Abandonment
• An easement is extinguished when its
holder demonstrates by physical action
(e.g., building structure that blocks access to
easement on adjoining lot) an intent to
permanently abandon the easement. Merely
expressing a wish to abandon does not
extinguish the easement; neither does mere
nonuse.
Estoppel
• Oral expressions of an intent to abandon do not
terminate an easement unless in writing (release)
or accompanied by action (abandonment). But if
the owner of the servient estate changes his
position in reasonable reliance on the
representations made or conduct by the owner of
the easement, the easement terminates through
estoppel.
Prescription
• To terminate an easement by prescription
there must be an adverse, continuous
interruption of the use for the prescription
period.
Necessity
• Easements created by necessity expire as
soon as the necessity ends.
Condemnation and Destruction
• Condemnation of the servient estate
extinguishes all easements. Involuntary
destruction of a structure in which there is
an easement extinguishes the easement;
voluntary destruction of such a structure
does not.
Licenses
• Privilege their holders to go upon the land
of another. But unlike an easement, a
license is not an interest in land; it is merely
a privilege, revocable at the will of the
licensor. It is personal to the licensee and,
thus, inalienable. Any attempt to transfer a
license results in revocation by operation of
law.