Easements - Part 1 - Basic Vocabulary & Concepts Property II Spring 2011 Easements – An Agenda Basic Concepts & Vocabulary Creation (& Contrast Similar Interests) Attributes Transferability (Assignability) Scope & Enlargement Termination 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 Lake. 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 land. 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 Estate Lot A Lot B Lot A is burdened by the easement so it is the Servient Estate 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. Lake Further suppose their agree -ment provides: Dock 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 SOF 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 Justification Elements Representation & entry on land Reliance Substantial investment/improvement Attempted revocation Easement by Estoppel Holbrook v Taylor (DK 774) Elements … Contrast Prescriptive Easements Termination Critique & alternative remedies . licensee windfall issue . damages Easement Implied by a Prior Use (Royster DK 779) Basic idea Elements . 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 inconsistencies) 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 Finis.
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