Easements - Basic Vocabulary & Concepts by WtHzUp


									    Easements - Part 1 -
Basic Vocabulary & Concepts

      Property II
      Spring 2011
      Easements – An Agenda
Basic Concepts & Vocabulary
Creation (& Contrast Similar Interests)
   Transferability (Assignability)
   Scope & Enlargement
   Classification of Easements
a. Affirmative or Negative
b. Appurtenant or In Gross
c. By Means of Creation
  1.   Express Easements
  2.   Easements by Estoppel
  3.   Easements Implied From Prior Use
  4.   Easements Implied From Necessity
  5.   Easements by Prescription
  Affirmative Easement
                Lot B has no access to any
                public road.

                For a price, A sells a right of
Lot A   Lot B   way to B to permit Lot B to
                access the road.

                This easement authorizes B
                to make affirmative use of
                A’s land.
                Negative Easement
                         Lot A has a good view of the

                         For a price, B agrees not to
                          build any structure or grow
Lot A   Lot B    Lake
                         vegetation high enough to
                         impair the view from A’s

                         This easement prohibits B
                         from making certain uses of
                         his land that interfere with
                          A’s view.
Anatomy of an Appurtenant Easement
                   Lot B – benefits from the
                   easement so it is the Dominant

   Lot A   Lot B   Lot A is burdened by the
                   easement so it is the Servient

                   Note – every easement has a
                   servient estate

                   but some easements have no
                   dominant estate
        Easement In Gross
                              For a price, B sells to A a right
                              of way to 1) cross his land to
                              access the lake, 2) construct a
                              dock on the lake and 3) moor a
Lot A   Lot B
                              boat at the dock.

                               Further suppose their agree
                              -ment provides:

                              1) these rights are not
                                 transferable and
                              2) they are extinguished upon
                               A’s death.
Easement In Gross

         Railroad purchases
         rights of way to operate
         across farm lands.
        Easement In Gross
                 A owns a lot with a
                 wetland that is excellent
                 duck habitat.
Lot A
                 To preserve duck habitat
                 Ducks Unlimited buys a
                 conservation easement from
                 A – A agrees to use his land
                 in a manner that does not
                 impair the duck habitat
    Classification of Easements –
              By Creation

   Express Easements
   Easements by Estoppel
   Easements Implied From Prior Use
   Easements Implied From Necessity
   Easements by Prescription
         Express Easements
Areas of ambiguity:

1. What interest is conveyed?
  a. FSA or easement
2. Is easement appurtenant or in gross?
  a. Language
  b. Purpose/Circumstance of grant
  c. Constructional preference for appurtenant.
3. Easement to a stranger to a deed (Willard)
           Express Easements
Title to Land:            Two means to means to
                          create express easements –
   GR                GE
        Conveyance        1. Grant transfers easement
                          to Grantee

Easement – by either
                          2. Reservation grantee
                             regrants new easement to
         (Grant)             Grantor.
   GR              GE
                          3. Contrast exception – pre-
                             existing easement kept by
      (Reservation)          Grantor
   GR             GE
            Express Easements
Title to Land:            Formalities – Must meet
   GR                GE
        Conveyance         Written memo
                           Signed by GR
Easement – by either
       (Grant)             Exceptions
                                Part Performance
  GR              GE
                                E. by Estoppel
                                Two Implied Easements
      (Reservation)             E. by Prescription
   GR             GE
            Express Easements
             –Willard (DK 768)
Prohibition against granting an Easement to a
  Stranger to a Deed

C.L. prohibition
  Justifications & limits
Progressive rule
  Justifications & limits
Exceptions vs Reservations distinguished
Classification: in gross or appurtenant?
Duration: E-in FSA, LE etc
           Easement by Estoppel
         Holbrook v Taylor (DK 774)

Contrast: License/Coupled with an Interest

Two views: 1) No E-B-E
             2) E-B-E
  Representation & entry on land
  Substantial investment/improvement
  Attempted revocation
          Easement by Estoppel
        Holbrook v Taylor (DK 774)

Elements …
Contrast Prescriptive Easements
Critique & alternative remedies
      . licensee windfall issue
      . damages
     Easement Implied by a Prior Use
           (Royster DK 779)

Basic idea
  . Quasi-easement under common owner
  . Severance
    .. Conveyance of Q-D tenement = implied grant
    .. Conveyance of Q-S tenement = implied resvn
  . Apparent
  . Continuous
  . Necessary
       Easement Implied by a Prior Use
             (Royster DK 779)

Problem of implying a reserved easement in
favor of a Grantor.

Position 1 (Eng) – no implied reserved easements
Position 2 – (US) same rules as implied grants of easement
Position 3 – (US- majority) implied reserved easements
permitted – upon strict necessity

Position 4 (Restatement) implied reserve easements –
permitted reservation is a factor to consider in ascertaining
party intent
        Easement Implied by Necessity
              (Othen DK 786)
. Niche – access to landlocked land

. Elements
   .. Unity of ownership of Dom. & Serv. estates
   .. Severance rendering one parcel landlocked
   .. Necessity – not convenience - at severance
   .. Continued necessity

Justification for Easement
  .. Public policy – access to land
  .. Intent of the parties –
  .. Relevant to enforce party intent to deny access
        Easement Implied by Necessity
              (Othen DK 786)
. Niche – access to landlocked land

. Elements …
   .. Necessity – not convenience - at severance
   .. Continued necessity
   Two Standards of necessity
   .. Majority: “strict necessity” required – alt access even if
    costly defeats easement
   .. Progressive standard –”reasonable necessity” - met if
      easement is beneficial of normal use of land (eg alt way is
      costly or difficult.”
. Termination – when alt way ends necessity
     Easements by Prescription
Basic idea – prescription defends ancient use.

Muddled by two different legal traditions (each with

  Tradition 1: acquiescence under a “lost grant”
  Acquiescence = LO’s “grudging tolerance” – not consent
      Acquiescence                 Prescription
      Permission                    No prescription
      Problem: evidentiary line between acquiscence &
      permission is indistinct
  US (maj): – reject lost grant fiction
   Easements by Prescription
Tradition 2: Right in nature of Adverse Possession

Different context:
Prescription = use         Adverse Possession = Title

Similar Elements:
     open & notorious
     adverse under a claim of right
     continuous & uninterrupted
     for statutory period
     Easements by Prescription
Tradition 2: Right in nature of Adverse Possession

Problem of unexplained use
  Permission – no prescription
   Acquiescence – prescription

Use of “presumptions
  1. Reject any use of presumptions
  2. Unexplained use presumed PERMISSIVE (Min)
  3. unexplained use presumed ADVERSE (Maj)
     Easements by Prescription
Tradition 2: Right in nature of Adverse Possession

Two Special Presumptions

  Unenclosed land – light use presumed permissive
  Initial use pursuant to license – presumed permissive

Limits to Prescription

  No negative easement by prescription
  Usually no easement by Necessity – arise by right – not by
  adverse conduct

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