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Property II
University of South Carolina School of Law
Wilcox, Robert M.


This semester, we focus on use rather than possession. Who can use land held in fee by others?
Restrictions on use, covenants on use, zoning (public restriction on use)

Ex. – representing developer of shopping center, they own land that appears favorable to commercial development, possibility of 4-5 stores on the land, parking and access issues, they have acquired land early on in process, focus this semester is on access rights (access for deliveries on the backs of stores) – we might be looking for agreements with adjoining property owners, we begin to negotiate for roads, we need to worry about how wide the land needs to be, can it be enlarged, can it be used for all of the stores in the shopping center, can all kinds of trucks be used, be sure right to sell easements runs with sale of shopping center (probably does), power easements, easements are an important part of the negotiations, are there any restrictions on the use of the land that might restrict the use of the land in the manner desired, what is the scope of those restrictions
landlord-tenant law—stores might want covenants not to compete in the tenancy agreements, covenants might prevent development 100 ft. from road, etc., residential area could pose as problem as residents may hinder process of government approval without negotiating covenants, landlord may wish to require tenant store owner to operate business in a certain manner, particularly if the rental agreement is for a percentage of sales, government approval/zoning questions of when it is too late to prevent development

Simplest concept is driveway, right to cross neighbor’s land to get to house
For every easement, four questions we have to ask

Where does the easement come from/how was it created? (5 or 6 ways)
What is the scope of the easement/what do we have? (width, time, manner of use)
Is the easement transferable?
In what manner is the easement terminated?

Express easement – “A has a road to use as he wishes” – couple of questions arise when you have an easement that appears to grant a right of use – yes, there is a right, but is it an easement
Two major areas of debate – easement v. granting of license AND easement v. granting of a fee simple estate (if we draft carefully, we will avoid the problems in this area, they arise primarily from sloppy drafting)
Ex. – owner of lot 1 selling lot 2 and reserving a right – if the owner reserves “all rights, title, and interest,” he might not have sold the strip at all, but the debate will begin with owner saying if title didn’t pass, the grant should have just described the land that was transferred

A license is viewed as a contractual right that can be revoked. An example is a ticket to a football game. Owners can revoke the license. At most, you might have an argument for a refund.
License – revocable permission
Express written permission could be a license if it appears to be revocable
Servient estate – estate being used
Dominant estate – is using the land
Reservation – limiting the conveyance, reserving an easement out of the fee
Exception – you may retain the fee, it may be interpreted as an easement
Question may become important if railroad got an easement across property many years ago and has since abandoned use as a railroad – did they merely have an easement or did they have a fee simple title running through the property

Easement appurtenant – goes along with the deed itself – think of in terms of being attached to the deed – if we sell the underlying estate, the easement appurtenant follows

Appurtenants deal with transferability issues.

Easement in gross – do not run with land, they are particular to the holder – no dominant estate, only a servient estate
(ex. – selling beach house and expressly reserve a right to cross the land to get beach access – this right does not attach to any land, it is personal to the holder, not attached to the enjoyment of any parcel)
(South Carolina has a peculiar rule on this issue.)

NOTES (1/15/03)
easement – irrevocable interest
license – revocable interest
In the agreement, was there an express term of use? Was the interest expressly made perpetual? (Perpetual use strongly suggests an easement. If clearly made revocable, a license was presumably intended.)
Is there a designated area of use—a road described in a specific location, for example? A more general grant of permission may be a license. A grant of a right to use a specific piece suggests an easement.
What is the extent of the consideration? The less the consideration, the more likely an easement was created. Note that the more consideration, the stronger an argument for a fee.
Did the user of the land get the power to improve/repair? This could be evidence of an easement. Mere right to use is more suggestive of a license.
Ex. – roof of your house hangs over the property line
After a time, the court grants that the person has the right to hang over the line. Is that an easement or a fee? Who has the surface rights?

Supreme Court of New York, Appellate Division, 1998.


Predecessor in title to Δ entered into a lease and easement agreement with Π.
The agreement permitted the Π to use the land for fox hunting.
In 1995, Δ ejected members of Π from his property.


Supreme Court denied Δ’s motion for summary judgment and granted Π’s cross motion to dismiss affirmative defenses and counterclaims.
Judge entered interlocutory judgment for Π (an intermediate judgment that determines a preliminary or subordinate point or plea but does not finally decide the case).

Is the right of Π’s to hunt an easement or a license?

The Π’s right to hunt is an easement, so the Δ has no right to exclude him from the land.


An easement is not revocable, but a license is, so proper classification is important.
The fact that the Δ had the right to develop his land and redirect the Π does not render the right of Π to hunt a license.
The easement here is for a definite period, another indication that it is an easement.
Given these facts, the right is properly classified as an easement, and the Δ may not interfere with this right.

1. If the club had this interest as a property right, it followed the ownership of the servient estate. If Smith is to win, he will argue that there was no easement. He cannot win by arguing that the easement did not follow with the title passed to him. Be sure easement is recorded so any subsequent purchaser has notice of your claim (easement).
2. Note that the title of the agreement was “Lease and Easement Agreement.” This is not extremely significant but helpful to the Π’s case.
3. The language of the agreement reserves to the servient owner the right to develop his land as he wishes. This provision suggests revocability. What if the servient owner wanted to develop his land into a commercial center? Then, the land could not have been used for hunting purposes. The court concludes that by use of the word “relocation,” the agreement implies that the landowner does not have right to exclude the hunt club.
4. However, the court focuses on the fact that the agreement is for 75 years. This suggests permanence/irrevocability. If landowner had included provision for early termination, he might have been able to make better case for license. This would have limited obligation. The court read this provision as beneficial to the dominant owner.
5. If the subsequent purchaser did not have notice of the easement, then he may take free and clear. This is an issue of recording.
6. What would we put in an easement? If we wanted to make it a clear easement, we would clearly call it a license. Make clear that there is a clear dominant and servient parcel, particularly a servient parcel. If you are going to have an appurtenant easement, you need for both parcels to be clearly included. Make clear that the easement is appurtenant if that is the intention. Describe the extent, scope, time of the interest. To make clear that it is an easement, include that the holder is responsible for repairing it.
7. Another argument – we draft something that turns out not to create an easement. It creates only a license. Is that the end of the question? It is possible that a license that doesn’t meet the standards of an easement can still become irrevocable. Once that happens, we might as well call the license an easement. Ricenbaw.

ASSIGNMENT 27, Problem 2:
Neighbor gets permission to use driveway of adjacent landowner. Neighbor had to pave the driveway. He did so, and he built a garage on his property at the end of the driveway.
When a pecan tree fell and destroyed the garage, the adjacent landowner advised neighbor not to rebuild the garage b/c he no longer wanted neighbor to have permission.

Is this interest a license or easement?
+ + + Arguments for easement: in writing, specific area, appearance of permanence, part performance (paving, building garage) may have converted what would have been a license into an easement b/c Y allowed X to detrimentally rely on getting the benefit of his expenditures and he would thus be estopped from revoking the license (like Ricenbaw). Some call this an irrevocable license. Some call it an easement by estoppel. Certainly, it has the characteristics of an appurtenant easement, and it would be transferable. Is it perpetual; can it ever be revoked?
— — — Arguments against easement: no consideration, no deed given to give future owners notice of property interest (granting language missing)

What is Y says I may have been estopped, but he agrees to reimburse X for his detriment? Is he no longer estopped? Does the interest then become revocable? This is an important question, particularly relating to whether we call the interest a license or easement. Also, what happens if the value is destroyed? Restatement suggests this may make it revocable again.

Statute of frauds – where you sell an interest in land, a writing is required. One exception is part performance. Another exception is estoppel. If one party allows another to rely on an oral argument, he may be estopped from denying its existence.

Argument: Y agreed to give X an easement IF he paved the driveway. It might have been a writing sufficient to satisfy the statute of frauds such that performance of paving the driveway made it an enforceable contract.

Part performance idea – focus might should be on paving of driveway

nding part performance in the grant of an easement, because consideration is often the only element present.

PROFIT – type of interest used for a party to enter land and remove something, treated fairly similarly to easements

express grants –
express reservations – you sell the servient estate and reserve a right to use it for the benefit of the dominant estate that you retain (sometimes, people try to use a reservation to grant an easement to a third party – ex. – people granting vacant lot used as parking lot, they sell parking lot to business – as part of the transaction, business would allow church to use lot for parking on Sunday mornings – owner typically sells land to business but reserves to third party church a right to use as parking lot – this was challenged on ground that you can’t reserve to third party – owner should have granted church an easement to use parking lot, then sold land to business subject to easement – courts have not been hung up on these stringent requirements – court may interpret reservation as grant, so deed is treated as two grants


These next cases are inconsistent with the statute of frauds. You can create a property interest without explicitly doing it in a writing. There will be a writing, but the easement/license will be implied in the writing, not expressly included. The question is under what circumstances will the court infer what the parties have not expressly done.

This is an exception in that interests are created in the absence of a writing. There is a actually a writing, but it is incomplete. The deed should have included language granting or reserving an easement in some regard. It is very important that we know which transaction we are dealing with. In which transaction should this language allegedly have been included?

Supreme Court of Ohio, 1984.

1. Property of Π-appellant and Δ descended from owner who held both properties as one.
2. Dual sewage system served both properties.
3. Appellee’s or predecessors’ grants contained was no reservation of an easement for the flow of sewage onto appellant’s property.

1. Plaintiff sought injunctive relief. Trial court denied motion by holding that Δ had an implied easement over Π’s property for the purpose of transferring sewage across the property into the existing septic system.
2. The Court of Appeals affirmed.
3. The Supreme court reversed and remanded.

Did the defendant gain an implied easement because its use was “continuous, apparent, permanent, and necessary?”

No. An equitable easement is not enforceable against a bona fide purchaser for value who has no actual or constructive notice when such use is not apparent.

1. Trattar factors: use which serves as basis for implied easement upon severance of ownership must be (1) continuous, (2) apparent, (3) permanent, and (4) necessary.
2. There is no reason not to protect a bona fide purchaser for value without actual or constructive notice. The person claiming the easement need only have recorded it or sought a declaration to provide notice.
3. The case for an implied easement falls short on the issue of its being apparent.
4. Even when appellant sought help from plumbing experts, they did not discover the sewage use by the defendant.
5. As the plaintiff had no notice, the evidence does not support the affirmative defense of an implied easement.

(Common owner did not have an easement on his own land. Sometimes, this use might be called a quasi-easement. The term is misleading, because the interest is not an easement. The easement would have to be created when the common ownership is severed. We must ask what happened when the land was most recently divided from common ownership. Was the prior use transformed into an easement? This is the easement implied by prior use.

This requires that we must find that the use occurred prior to the severance of the common ownership. This court talks about the parties’ knowledge at the time they bought the properties. We should not be talking about what the parties knew at the time of the transactions.