Property II Outline
A. Restatement § 405 on Easements-an easement is an interest in the possession of another which:
1. Entitles the owner of the interest to limited use of the land which the interest exists
2. Entitles him to protection from interference of third persons in the interest,
3. Is not subject to the will of the possessor the land
4. Is not a normal incident of the possession of land and
5. Is capable of creation by a conveyance.
B. Servitudes- the land owned or posses by one party serves another party
1. Servitudes allow for the better and more efficient use of land
a. Examples of servitudes are easements and covenants that restrict use of property or grant someone the right to do something
b. Servitudes usually arise from formal agreements evidenced by a written document, but property law governs this area not K’s.
2. Five Categories of Easements
a. Express Easement-the most common and best type because it explains the scope, duration, and limitations typically in writing
b. Easements implied from Prior Existing Use- non-express but can be implied from a prior use of the land
c. Easement by Necessity- non-express easement that arises due to an absolute necessity in land.
d. Prescriptive Easement- almost the equivalent of adverse possession, it is a non-express easement that arises from using another person’s land
e. Irrevocable license or Easement by Estoppel
3. Dominant Estate v. Servient Estate
a. A owns Blackacre, B owns Whiteacre, A grants B an easement to use a road across Blackacre to get to Whiteacre, Whiteacre is the dominant estate, Blackacre is the servient estate.
4. Affirmative v. Negative easement
a. Affirmative Easement- granting someone the right to use the land in someway i.e. right to cross, park, right to use a water source, basically a right to do something
b. Negative Easement- denies someone the right to do something-prevents someone from doing something on their property for the benefit of another.
C. Fee Simple v. Easement
1. Rules of Construction for interpreting an easement
a. Intention of the parties and the grantor in particular is to be ascertained by a fair consideration of the entire instrument and the language of it
b. Words in the instrument are to be construed in part material and construction should be adopted which gives effect to all words and effectuate the intention of the parties
c. The grant is to be construed in favor of the grantee, and a fee simple is presumed unless it appears from the grant a lesser es
a. When determining the rights and obligations of the easement the language of the granting instrument must be first examined
i. If the language is unambiguous that its given full force and effect, thus well drafted conveyances guarantee intention of the parties are carried out
b. To determine Intent, consider the language used by the grantor and the surrounding circumstances such as:
i. Look to whether the easement was granted or reserved (reserved easements are interpreted more restrictively since ambiguities go against the grantor
ii. Amount of consideration given for the easement
iii. The prior use of the land on which the easement is located
iv. The subsequent conduct of the parties
c. Extent-physical location: if the easement fails to fix the length, width, and location but merely establishes one, it is generally construed to cover only so much of the area that is reasonably necessary to affect the purpose of the easement.
i. It will never cover the entire property of the servient estate.