a. Creation of Express Easements
i. Express Grant: The bilateral agreement to create a property interest to benefit someone or some piece of land. It will remain with the grantor (a reservation) or be transferred to the grantee via a deed.
a. Words/phrases to include
i. Should say, “grant for the purpose of…”
ii. It should be described as an “easement”, “profit” or “right to use”
iii. “Reserve” sounds like an easement.
a. Words like “convey” and “grant” as this sounds like FSA.
3. The servient estate must be adequately described. Metes and bounds work best.
4. You should describe the scope of the easement.
5. An express easement must conform to the Statue of Fraud requirements.
6. Duration should be described.
7. When trying to distinguish between a fee and an easement language is the most important thing but also consider
i. A driveway was probably not meant to be a fee.
c. Consideration paid
i. $20.00 is probably not meant for an entire fee.
d. Intent of the parties
8. Berg v. Ting: The servient estate must be adequately described.
1. This is view as a contract right.
a. It is revocable at anytime.
b. Very informal
c. It will likely be made orally but it can also be written.
d. Licenses=consent to use the property (mere privelege)
e. When may a license become irrevocable?
i. If the licensee, in reliance on the license, makes a lot of improvements and it would then be inequitable for the licensor to revoke the license.
iii. Distinguishing between Licenses & Easements
1. Length of time/definitive time limit suggests that there is an easement.
a. Millbrook Hunt v. Smith: P has a “lease & easement agreement-this is a problem in the drafting” to hunt foxes on the Ds land by the D is anti-hunting. D argues there is a revocable license & P argues easement. The lease said that it was good for 75 years unless terminated sooner. The parties expressed their intent to reserve a permanent right to hunt on the land, not revocable. AN ESSENTIAL FEATURE THAT MAKES IT IS A LICENSE IS THE 75 YR. PERIOD.
2. A designated area indicates an easement
3. Substantial consideration paid-easement
4. Allowed to make improvements/repairs/exercise control
5. Part of a deed
iv. Easement by Estoppel: A court ordered an easement created from a voluntarily servitude after a person, mistakenly but reasonably believing it to be permanent, acted in reasonable reliance on the mistaken belief and made a lot of improvements.
1. It looks like an easement b/c you have taken away the right to revoke.
2. Ricenbaw v. Kraus- Original owner of P’s property obtained permission from D’s to construct a drain on D’s estate. It looked like a license because it was oral. License became easement b/c P spend a lot of $ in reliance on the easement and it would be inequitable not to recognize the easement.
a. Even though 50 years passed, time doesn’t change the status.
b. It was allowed to become an easement because of the RELIANCE on the mistaken belief and substantial improvements.
c. Both part performance and equitable estoppel have created an easement in these instances.
v. Part Performance: If the original intent was to create an easement, once expenditures and improvements have been made, an oral K will be enforced as an easement.
1. Berg v. Ting:
a. Delivery and assumption of possession
b. Consideration (payment or tender)
c. The making of substantial, permanent improvements
2. When the license has become an irrevocable easement by estoppel, there is a chance for it to become revocable again, especially once the holder recovers the investment he put in.
3. Theory One-If the license becomes irrevocable-it may become revocable upon destroying the investment.
4. Theory Two-If there is an easement, that doesn’t conform to the Statute of Frauds but there is partial performance, the license is no longer revocable.
b. Creation of Implied Easements
i. This is an easement created in law. The court recognizes the easement b/c they thought the parties intended to create the easement but forgot to do it.
ii. Implied Easement types
1. Implied by prior use
2. Implied by necessity
iii. Easement Implied by Prior Use: This easement is created when the objective elements tell us that it’s reasonable for the seller and buyer to assume the previous use would continue. Is it reasonable necessary for A to cross the parcel and use the easement?
1. Try to argue for an easement created by prior use over necessity. B/c in an easement by necessity will terminate when the necessity no longer exists.
a. Unity of title-It was owned by a common owner.
i. If you were a common owner, you severed the parcels and then became the common owner again the easement may have been destroyed. You have to look at the critical time.
b. Severance of title- The common owner sold a parcel to another party.
c. The use must have existed at the time of severance.
d. The use must have been apparent.
i. Otero v. Pacheco- The Ds were trying to prove an easement implied
Smiley- If the deed description or plat includes a private road as a boundary. There is an implied easement. If the referenced plat has a road, an easement will be implied here as well.
vi. Prescriptive Easements- This is an easement created from open, adverse and continuous use over a statutory period. Required elements:
1. Continuous- The adverse use must exist for the full 20-year statutory period.
a. If the servient owner physically or verbally attempts to prevent a adverse use, the adverse possession clock starts over.
i. Pittman v. Lowther- D tried to interrupt the use of his land by P. Each time D erected a barrier, P tore it down. Therefore, although P’s use was highly adverse, he doesn’t satisfy the continuity element. Writing the letter, by itself, may not have been enough. In fact, this may have shown there was acquiescence.
1. If your neighbor’s use starts out as hostile, then you give them permission, this may not be enough to stop the adverse use. You need to put up barriers, stop their use and then give them permission.
2. Hostile- Refers to hostile use and enjoyment
a. Hostility cannot arise under permissive use & this it cannot become prescriptive unless an express claim of right is made.
b. Starting point: What is the presumption in the jurisdiction you are in?
i. In South Carolina, the presumption is hostility.
ii. This is a rebuttable presumption.
1. Evidence of expressed consent to the potentially adverse user.- If you want to keep your neighbor from obtaining a prescriptive easement, go to them and give them a license.
2. The use doesn’t harm the servient estate and there is some type of relationship (i.e. neighbors). If an extra burden is placed on the land then hostility is presumed.
a. You can infer consent from Drake v. Smersh-“neighborly accommodations”
iii. Vacant Lands Doctrine- If the land is wild and undeveloped there is a presumption that the is permissive. The owners aren’t using it; therefore you have permission to use it. (Drake v. Smersh)
Close family/friendly relationships would cause one to infer consent; this would be enough to rebut the presumption of