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Property II
University of South Carolina School of Law
Eagle, Joshua Gary

PROPERTY II OUTLINE- Spring 2013 Eagle


I. Background

A. An easement is some portion of the property interest that a fee owner has transferred (or in selling the fee has kept the property interest) that gives the right to use.

a. Giving someone a right to use a road, does not mean that the fee owner can not use that road.

b. When someone gives an easement they give up some aspect of control.

c. Easements are mostly affirmative rights of use, but there are a couple of negative interests treated as easements. (negative interest are usually covenants).

d. Must have written evidence to satisfy the statute of frauds because it is a property right, usually in the form of a valid deed.

B. Estate Interests

a. Dominant Estate: land benefited by the easement (may or may not have this).

b. Servient Estate: land burdened by the easement.

C. Appurtenant v. In-Gross Easements

a. Appurtenant Easement: A easement that follows the ownership of the dominant estate.

b. In-Gross Easement: An individual that has the right to use (holds it personally, not as the owner of a parcel and does not follow the ownership).

D. Profit: a right to remove something from the land, and has the same characteristics as an easement.

E. Distinguishing an Easement from a License

a. A license does not imply an interest, but is a personal privilege to commit some act or series of acts on the land of another without possessing any estate.

b. A license is subject to the will of the landowner and is revocable at any time.

c. If someone has a license, and that license is revoked, and they are already on the land, then they are not a trespasser because they are already on the land with permission.

d. Licenses can be written or oral—licenses can be very informal (telling someone they can go get their football off their land).

e. You can have a continuing license, but that still can be revoked.

f. License does not establish a claim of right in property.

g. An easement conveys possession in interest in land held in fee by another and is not subject to the fee holder’s will.

F. Vital Questions

a. How was the right created?

i. Is there anything in writing?

ii. If not—how was the right obtained?

b. What is the right?

i. Fee?

ii. License?

iii. Irrevocable License?

iv. Easement?

II. Creation

A. Express easements: bilateral agreement that creates a property interest to benefit someone or some piece of land.

a. Two ways to do this:

i. Express Grant: grantor grants an easement by deed.

ii. Express Reservation: grantor may convey land and reserve for himself an easement over the land.

1. It creates difficulty if you sell the land and try to reserve an easement for a third party. For this situation you should use two deeds, one that grants an easement and one that grants a fee simple subject to existing easements.

b. When granting an easement, you should say it is an easement and use the correct language and not use “fee” language. The drafting is very important when granting easements, licenses, etc

i. Look at the words—“use” usually means an easement.

1. Must have a servient estate.

ii. For an easement, give the reason for using the road, ditch, etc.

1. Ex. I grant you a road to use “over the land” or a right to drain water “through a ditch”.

iii. Look at consideration—if someone pays $10 it might be an easement, if someone pays $10,000 it might be a fee.

iv. Look at the location—ex. if in middle of land, they would argue it was an easement.

v. Look at the purpose of the conveyance.

B. Irrevocable License

a. A mere license is revocable, but there is an exception to that rule if it would be inequitable to permit the revocation of the license because of an expenditure based on that license, it then may become a irrevocable license. (Ricenbaw)

b. Elements of an Irrevocable License

i. Servient estate originally grants a license (which can be revoked at will).

ii. Dominant estate

1. Makes a significant expenditure in reliance on that license, or

2. The servient estate receives an undue benefit.

iii. Servient estate is estopped from revoking the license.

1. License can not be revoked until the reason it is irrevocable is removed.

2. Irrevocable license may again become revocable when the value of the license has been realized.

c. Part performance: a judicially created exception to the statute of frauds.

i. So, another alternative theory is that the oral permission was an effort to create a contract for the sale of property (an attempt for the creation of an easement), and this part performance enforces this verbally created easement and it is perpetual.

C. Implied by Prior Use

a. Elements

i. The dominant and servient tracts of land originated from a common owner.

1. If many lots are commonly owned, and then sold off, you have to go through and find out which was the last lot sold that created the implied easement.

a. For example, find out which lot sold may the parcel completely landlocked. The other lots before are just strangers.

ii. There was severance of that common ownership.

iii. There was prior use was in existence at the time the original grantor severed the tracts.

iv. The use was apparent (parties must know of the use).

1. With apparency, you don’t have to actually see it, but it must be enough that you should have known. That’s how apparency issues come up, when looking at if the parties should have known.

2. If a reasonable prudent person would have inquired, then they would have constructive knowledge. So, its not just that t

3. Most of the time you simply have the fact that the person has used it (you do not have a clear consent or clear hostility).

4. If you come in with a hostile intent to take something you didn’t have you are adverse; if you come in believing you have it, under a claim of right, and you are mistaken you can still receive a prescriptive easement.

5. Different from adverse possession because it is easier to tell when possession is hostile, then when use is.

iii. Exclusive (the person claiming is claiming it by their own actions or predecessors).

1. There may be a lot of people using the road, you can still get a private prescriptive easement, as long as your claim is based only on your use (Nelums).

b. If the public uses it enough, it becomes a public right of access (Interior Trails).

c. Things that can override the presumption of hostility:

i. Express consent.

ii. Vacant Lands Doctrine: in cases of vacant land, there is a presumption that the use was permissive (this is because you are less likely to detect it, and even if you do detect it, you are less likely to say anything because they are not really messing with anything).

iii. Neighborly consent: Even if you don’t have express consent, may be presumption of permissive if:

1. There is some relationship between neighbors (maybe family).

a. There is a presumption that the use was permissive if between family members.

2. Use does not harm servient land.

a. If this is going on, and you they are getting close to the 20 year point, just to make sure, you want go and expressly consent.

b. If use is a detriment to the dominant estate, than acquiescence will be implied.

i. Acquiescence: a failure to object to the use of land (not verbal like consent).

d. If two parties jointly own a driveway, courts have historically decided these cases as prescriptive easement cases.

F. Use of Road as an Easement

a. Elements

i. Common ownership.

ii. Severance of title.

iii. Language in the deed describes a boundary in the land by a road.

b. Courts will imply that the deed granted an easement of the road because the road was used to describe a boundary of the severed land.

c. You can use this in conjunction with an argument for an easement by necessity and prior use.