Property II Outline.
Draft Person should consider the following:
Creation
o In gross or appurtenant
Definition/Limitation
o Purpose & Scope
Obligation
o Repair issues
Duration
o Express (ends on this date)
Succession
o In gross / appurtenant
Termination
o Express or Not
Location/Relocation
o Majority Default  not unilateral
Statutory Requirements
o (Real Estate Transactions)
Easement – a grant of an interest in land that entitles a person to use land possessed by another
Non possessory right, can own an easement but easement is not owning the land
Reservation and Exception
Reservation – retains for the grantor a newly created property right.
Exception – retains for the grantor a preexisting interest in a described geographical part of the property or
recognized a previously existing property right in a third party.
1)
2)
3)
4)
Dominant vs. Servient Estate
a. Dominant – land benefited by the easement
b. Servient – land subject to (i.e. burdened) by the easement
Affirmative v. Negative Easements
a. Holder has the right to do things which, were it not for the easement, they would not be permitted
to do.
i. As a general rule, an easement appurtenant to one parcel of land may not be extended by
the owner or the dominant estate to other parcels owned by him, whether adjoining or
distinct tracts to which the easement is not appurtenant.
1. However, misuse without an increase in the burden on the servient estate is not
sufficient harm to overcome considerable hardship
a. If landlocked  statutory condemnation to get RoW Easement.
b. Holder may prevent the possessor of the land burdened by the easement from performing acts
upon the land that he would otherwise have a legal right to perform.
Appurtenant v. In Gross
a. Appurtenant  belongs to who owns the land  dom. & servient estate.
i. When dominant estate is transferred any easement appurtenant to it automatically passes
with it and cannot be conveyed w/o simultaneously transferring dominant estate.
ii. Assumed Appurtenant b/c
1. most are intended to be appurtenant
2. since it passes automatically with a grant of the dominant estate, default tends to
protect the grantee from consequences of an inadvertent failure to include a
separate grant of an easement
3. any detriment to servient estate is usually offset by a benefit to dominant estate
iii.
b. In Gross  May be personal to the easement owner  servient estate
By Grant or By Reservation
a. Grant – created by a written instrument  grant of easement to grantee
b. Reservation – an easement in favor of the grantor who convey a fee or interest to another.
Express Easements – in writing, identify grantor and grantee, words, description and signed by grantor.
1
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Creation
o Express Easement Elements

In writing

Identifies grantor and grantee

Words of purchase

Description

Signed by Grantor
o Grant vs. Reservation
o Fee presumed unless lesser estate intended

Grant construed in favor of the Grantee

If intention is in doubt consideration given to situation and circumstances

If intention is clear from the language of the deed, then it will be given effect
regardless of technical rules of construction.

Factors in determining whether a deed to convey FS title or an easement
o Amount of consideration
o The particularity of the description of the property conveyed
o The extent of the limitation upon the use of the property
o The type of interest which best serves the manifested purpose of the
parties
o The peculiarities of wording used in the conveyance document
o To whom the property was assessed and who paid the taxes on the
property
o How the parties to the conveyance or their heirs or assigns have treated
the property.

Professor Williams Notes on Factors
o Consideration paid
o Description
o Language – right of way/across
o Needs of the parties
o Restrictions on use.

Public policy discouraging separate ownership of narrow strips of land
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Interpretation/Extent
o Extent of Easement

Dominant  Reasonable use of servient land  cannot unduly burden or neg. impact

Servient  any use of estate so long as there is no interference w/ easement
o The holder of an easement or profit is entitled to use the servient estate in a manner that is
reasonably necessary for the convenient enjoyment of the servitude.
o In determining intent of the parties concerning scope courts have considered:

Whether the easement is granted or reserved

The amount of the consideration, if any, that the original beneficiary of the easement gave
for the easement
o Changes to Easements

Location

CL Rule: Relocation By Consent (majority)
o (mutual consent for relocation) agreement of both parties
o Burdens on dominant parcel
o Erosion of easement holders rights
o Devalue the easement (consideration)
o Judicial efficiency

w/o dominant consent?
o Unilateral Relocation (minority)

Best use of servient estate

Encourages grants of easements

Purpose of easement not detrimented

CI: can at own costs move w/o consent but only if it
does not significantly lessen the utility of the
easement or increase burdens of the estate owner or
frustrate the pupose for which it was created.
2
o

Use





-
Substantially similar w/o frustrating the
purpose.
Dominant  cannot unduly burden or negative impact
Servient  any use of estate so long as there is no interference w/ Easement
Can change intensity of use over time, but not kind of use
General rule  when an easement is created by grant or reservation and the
instrument creating the easement does not limit the use to be mae of it, the
easement may be used for “any purpose to which the dominant estate may then,
or in the future, reasonably devoted.”
Repairs

Owner of easement has duty to make repairs to easement
o Servient estate owner has no obligation to repair easement

But may for reasons of use & tort liability

Owner of easement has right to improve
o Ex. Paving.

So long as you don’t unduly burden the servient land.
Succession
o Appurtenant  Absent an express provision in deed stating otherwise, an appurtenant easement is
presumed to be transferred with the dominant estate. (if want In Gross have to be explicit and in
writing)

Succession to Dominant Estate

If the terms provide that the easement will be extinguished upon transfer  such
will be the case

If the terms provide that upon transfer the appurtenant easement will become an
easement in gross for the benefit of the transferor  such will be the case

If the deed creating the easement prohibits its transfer with the dominant estate
but does not specify the consequences
o Either the easement is extinguished; OR
o The provision is ineffective and the easement passes with the dominant
estate.

An attempt to transfer an appurtenant easement separately from the dominant
estate would not be effective
o But would usually not extinguish the easement

Succession to Servient Estate

If servient land transferred, easement runs and enforceable against the successors
of the servient estate
o In writing, Intended it to run, had Notice.

If no expressed contrary intention in the granting instrument
o Courts presume intended it to run

If successor purchases the servient estate w/o notice of the easement
o Most modern statutes extinguish the easement.

Burden of easement runs if intent and notice requirements are satisfied.

Benefit  presumed to run with the land

Burden  if the following  runs with the land

Writing
o Original easement (b/t A& B) must be in writing

Intent  presumed
o Intent in original easement (b/t A & B) must intend to run

Notice  actual, inquiry, constructive
o Actual (in deed)
o Inquiry (factual circumstances/reasonableness std.)
o Constructive
o
In Gross 

Commercial question.

If commercial  presumed assignable
o Economic gain

If non-commercial  presumed non-assignable
o Personal satisfaction  non- assignable unless in writing
3

Some jurisdictions have adopted restatement view that says all assignable unless
parties agree otherwise.

Older View

If the primary purpose of the easement is to gain personal satisfaction the
easement is deemed non-commercial  presumption not assignable.

In determining the intent of the parties court will look to
o The r/t b/t the grantor of the easement and the grantee

The more personal the r/t, the less likely the parties indeed the
easement to be assignable
o The degree to which assignability of the easement increases the burden
on the servient estate.

Either by increasing its use or decreasing its value

The greater the burden, the less likely the owner of
the servient estate intended the easement to be
assignable.
o Consideration paid for the easement

The purchase price should reflect the intention of the parties as
to alienability

The greater the cost of the easement, the more likely
the parties intend the grantee to be able to recoup
some of those costs by selling the easement
o Degree to which the use of the easement is temporary and personal.

If the use is temporary and personal, parties probably intended
the easement to be used only by the grantee for the time
designated and so is probably non-assignable.
o Two times when the ct. is justified in considering all the facts to determine intent of parties

Where the extent and reasonable use of the easement is an issue

Where the language used is ambiguous
CHART ON P. 404
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Termination – Once Terminated  easement gone/done/over forever
o Express

Duration

Breach of Condition

Purpose Accomplished – or Purpose becomes impossible to accomplish
o Subsequent Events – Default rules

Misuse

that cannot be prevented by injunction

Severance

try to transfer easement and not dominant estate (in appurtenant) severed and
thus terminates

Release

in writing

Abandonment

non use + intent

Merger

cannot have easement in your own land

Involuntary Destruction

terminates (acts of god)
o Voluntary destruction

D terminates // S  does not terminate
An express easement can terminate in accordance with the terms of its creation or through extinguishment
as the result of subsequent events
o Termination

Created to last for a specified period of time

Created to serve a particular purpose
o Extinguishment

Release

Dominant Owner may terminate by releasing the easement in a formal written
instrument.
4
o Must meet the requirements necessary to create an easement.
Abandonment

Dominant Owner may terminate by abandoning the easement
o Manifested in unequivocal conduct sufficient for that intent.

Failure to use for authorized use

Non-use alone is seldom sufficient (need intent)
o Cts. More willing to find abandonment in easements than other
interests b/c clears up titles and encourages full use of the servient
estate.

Dominant Owner may terminate by improper exercise of his rights.

Misuse and Overuse generally not sufficient
o Has to be of the kind which cannot be prevented by injunction to
terminate

Although servient can get an injunction to enjoin excessive use.

Servient Owner acts or conduct may extinguish easement.

(writing, intent, notice)

Easement will not run if bona fide purchaser for value w/o notice
o Ex. Easement owner does not record easement and inspection of
property does not give notice.

Servient owner can extinguish by making adverse use of the parcel for SOL
necessary to acquire an easement by prescription.

Merger

Dominant and Servient Owner conduct together to extinguish easement
o Dominant acquires title of Servient estate

Extinguishment by Estoppel

Requires actions on the part of both Dominant and Servient

When servient owner reasonably relying on the actions of the dominant owner,
engages in conduct inconsistent with the continuance of the easement.
o If servient owner would suffer unreasonable harm by a restoration of
easement rights, the easement owner is estopped from asserting these
rights

The easement is extinguished.

Third Parties – can be done against the will of both Dominant and Servient.

Eminent domain

Mortgage foreclosure

Tax Sales
Punitive Damages

Only where a wrongful act is accompanied by aggravating circumstances such as
willfulness, wantonness, malice or oppression that such damages are recoverable.

o
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Compared to Licenses – non-possessory right to use land of another, merely permission to enter py.

Limited

Temporary

Specific Purpose

Personal to Licensee

Often implied but can be written or oral

Revocable at will

Not-transferable (default rule)

Cannot be inherited or given by will

Terminated at Will of Creator

Differs from Easement

Can be Oral

Easements subject to Statute of Frauds so need to be in writing

Easement for a more designated area

For a specific time or perpetuity

For more consideration

For improvements or repairs

Control over what happens
o License v. Easement
5



License – a privilege to do certain acts of a temporary character on the land of another
which is revocable at will of a licensor unless a definite time has been specified, or unless
it is coupled with an interest.
Easement – non-possessory interest in land of another

An Easement differs from a license in that a license generally grants permission
to do something on another’s property.
Whether license or easement exists factors to consider

Intent of the parties

Duration of right created (permanent?)

Amount of consideration given for the “right”
o “right” could mean right in land or a license.

Reservation of power to revoke that “right”

Nature of “right” created – obligation the parties have agreed to
Implied Easements
–
Easement not in writing
o arises out of r/t of parties w/o some sort or express agreement.

Courts disfavor – but w/intent  law infers easement
–
Easement implied by Prior Use
o Arises when land conveyed
o Elements

Common ownership

Visible benefit

Used long enough intended to be permanent

Reasonably necessary for enjoyment
o Scope  prior use establishes Scope.
–
Easement implied by Necessity
o Arises when land conveyed
o Elements

Common Ownership

Land Severed

Severance creates the necessity

If landlocked sometime after severance do not have IE by Necessity
o Scope  whatever is “reasonable”
Necessity can be judged by standard applied. Either Strict Necessity or Reasonable Necessity.
o The degree of necessity required for an IE by reservation is greater than the degree of necessity
required for an IE by grant

Had opportunity to create an express easement
o The degree of necessity required for an IE by Nec. is greater than the degree of necessity required
for an IE by PU.

IE by PU  has other factors which safeguard arbitrary IEs
o The more obvious, continuous, permanent, and apparent a use is, the less degree of necessity is
required for an IE by PU

Other elements of IE by PU safeguard.
Prescriptive Easements 377
Elements
o Adverse and Hostile

Presumption: someone on py w/o permission

If have permission cannot claim prescriptive easement
o Open / Notorious / Visible

Use must be visible enough that diligent owner would know

Not actual notice standard
o Exclusive

Landowner has not done something to exclude
o Continuous

Uninterrupted

Pattern of use

Frequency consistent w/ purpose
6
o
-
For Statutory Period

In some jurisdictions  stty period may be shorter for prescriptive Et. than Adverse Poss.
Easement by Estoppel  starts as a license, relies on that license by their detriment becomes easement by
estoppel.
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Concept
Interest in land?
Writing Req’d?
Permissive or
Non Permissive
Permissive
Revocable at
Will?
Yes
License
Express Et
No
(permission to
enter)
Yes
No
(can be oral, written
or implied)
Yes [Express]
(Subject to Stt. of
Frauds)
Permissive
No
(can be
terminated but
not @ will)
No
(IE terminate
as Ex.Ets do)
No
(IE terminate
as Ex. Ets do)
IE by PU
Yes
No.
Permissive
IE by Nec.
Yes
No.
Permissive
Prescriptive Et.
Yes
No.
Non-Permissive
Real Covenants
Creation and Validity
Enforcement and Running
Defenses to Enforcement
Real Estate Transactions
Requirement of a Written Instrument
Requirement of Deed Delivery
Real Estate Brokers
Marketable Title
Recording Statutes
7
What determines
Scope?
Appurtenant or
In Gross?
In Gross
Appurtenant
(Dependant on
language,
intent, etc)
Prior Use
Establishes Scope
Whatever is
Reasonable
Established by the
Use