I. Non-possessory interests: can be held by someone other than the owner of the property; can make title to land unmarketable (clouds on title); in many ways can enhance the use of land or be essential to give access to certain parcels of land
a. Easements: a grant of an interest in land that entitles a person to use land possessed by another
i. Basics and terms
1. Tend to be limited rights to use
2. Referring to benefits and burdens
3. Dominant tenement: the land receiving the benefit
4. Servient tenement: the land with the burden
5. Appurtenant easement (Figure 1): interest in land that is attached to the dominant tenement; serves the dominant tenement in a way that can’t be separated from the land; at common law followed the ownership of the property benefiting from the easement
6. Easement in gross (Figure 2): an interest in land that serves the owner of the easement only; doesn’t run with ownership; at common law terminated at the death of the owner of the easement
7. License: revocable privilege to use; not an interest in land
a. Figure 10: purchasing tickets to a baseball game is not a purchase of an interest in land; i.e., can be thrown out of the stadium, etc
8. Affirmative easement: gives owner of the easement the right do certain things on the servient tenement
9. Negative easement: allows the owner of the dominant tenement to prevent certain acts on the servient tenement; very limited in number
a. Types:
i. Blocking your windows
ii. Interfering with air flowing to your land in a defined channel
iii. Removing the support of your building
iv. Interfering with the flow of water in an artificial stream
b. These are the only negative easement types recognized in England
c. The US may sometimes recognize others
10.Profit: (easement plus) the right to take something naturally appearing on the servient tenement; normally associated with this are rights to go get the things naturally appearing
ii. Creation of easements
1. Express creation: Voluntary agreements between parties
2. Grant (preparing a deed)
a. Requires (partial list; see supplement page 1): notarized, name of the parties, intent to convey land, witnessed, description of the easement, SOF compliance, may require that it is sealed, delivery, ensure that it is recorded
3. Reservation: keeping
done
a. Two types:
i. Necessity
1. Requirements:
a. Unity of title
b. Severance of unity of title (part granted to a new owner)
c. Necessity
2. Examples:
a. Figure 11: Seller owns land; subdivides land into two parcels; sells north parcel and retains south parcel; say land surrounded by mountains; easement created because no other way to exit property (strict necessity)
i. Courts don’t like to leave landowners landlocked, even those that should have been paying more attention
ii. If the seller in figure 11 had sold the south parcel instead, courts are less sympathetic to this situation so will require a higher degree of necessity
