PROPERTY OUTLINE
18. Easements: Classification and Manner of Creation [p.337]
A. Non-possessory interest – right in real property possessed by another person
1. Easement – smaller denomination of property interest
2. Interest in land in the possession of another which entitles:
(a) Interest to limited use/enjoyment (b) Protection against 3rd persons
(c) Not subject to will of land possessor (d) Capable of creation by conveyance
B. Classifications
1. Affirmative easement – landowner gives right to use property
a. Reciprocal – burden and benefit (adjoined driveway also known as right of way)
b. Allows contemporaneous joint use
2. Appurtenant – attach to/benefit particular interest in land or grantee (dominant estate)
a. Types of estates
1. Servient estate – land subject (burdened) to easement
2. Dominant estate – land benefited by easement
b. Dominant estate transferred –appurtenant automatically transferred but cannot be conveyed w/o simultaneous transfer of estate
c. Presumption of appurtenant:1) most are intended to be appurtenant, 2) protects grantee and
3) any detriment to servient estate is usually offset by benefit of dominant estate
3. In Gross
a. Do not attach to/benefit particular piece of land (often affirmative easements in gross)
b. Utilities & Railroads
4. Negative easement – landowner agrees not to interfere w/ another’s land
a. Limited concept – promise not to use land which interferes w/ another’s light and air
C. Creation of Easement: operation of law or written instrument (most common) (generally runs w/ land)
1. Expressed
a. Grant or convey:usually fee (occasionally implied by operation of law)
b. Reservation: retains for the grantor a newly created property right (to use the easement)
c. Exception: hold fee … retains for the grantor a pre-existing interest in a described geographical part of the property or recognizes a previously existing property right in a third party
d. Implied easement: right to get on property (land locked piece of property)
2. Problems
a. Clarity of drafter – drafter should avoid transferring fee to grantor while creating easement in someone other than the grantee/grantor
b. Fee title v. Right of way Easement
1. Inconsistent clauses – necessary to use rule of construction to aid grantors intent
a. FIRST: Look to Intent of parties – paramount rule (especially grantor)
1. Construed in favor of grantee (or against drafter)
2. Words read parimateria with construction & facts (entire document)
3. Also look at subsequent acts
b. Intent in Doubt
1. Amount of consideration – pay more for fee than easement
2. Location specific – fee is specific; easement more general (KEY)
3. Extent of limitation of use – words of inheritance show fee
4. Grantee’s need – do they need to own it or will easement suffice
5. Peculiarities of wording – specificity
6. Who pays property and real estate taxes – no payment shows easement
7. Use of property
c. Common Law: PRESUMPTIONS
1. Northwest Reality–
a. “Right of way”- usually easement
b. General (or discretionary) location = easement
2. Fee simple presumed – unless grant explicit states lesser estate intended
a. Transfer of a strip of land w/o limitation = fee
3. Greaves: Usually wouldn’t convey to public entity a fee interest
4. Hurst: Generally; granting a road is a right of way and therefore easement
a. Public policy against ownership of narrow strips of land b/w parcels → often easement (different J’s)
3. Creation tips
a. Semantic Ambiguity → words have more than one meaning
1. Sanction can mean approve or penalty (single dwelling house)
b. Syntactic Ambiguity → ambiguity caused by arrangement of words in sentence that creates uncertainty of what modifies what
1. Report required of educational institutions &corp’s making charitable donations
c. Contextual Ambiguity → different parts of same document are contradictory
d. Document must be read as a whole
D. Courts split over whether reservations can be made in favor of 3rd parties
1. Traditional view: grantor may not reserve easement in favor of 3rd party b/c 3rd party is stranger to transaction.
2. Trend view: allow easement created in 3rd party w/ rationale to effectuate parties’ intent
3. How do we avoid this in every case?
a. Bring 3rd party in to be direct party to conveyance → Grant easement to C then C to B
s19. Easements: Interpretation and Extent
A. How much detail should be required in a deed of easement for easement to be enforceable?
1. Scope of easement – all purposes used appropriate to accomplish the easement
a. Grantor’s only obligation is not to interfere w/ grantee’s use
2. Location
a. If width, length, and location are fixed – court may not consider other factors
b. Not fixed – court may consider necessary and reasonable effective use of easement
1. Intent
a. Whether easement is granted or reserved (reservations interpreted restrictively)
b. Amount of consideration (substantial consideration favors beneficiary)
c. Prior use
d. Subsequent conduct
2. Right of way – construed to extend over area reasonably necessary to affect purpose (helps in determining scope/location)
c. Add parcel: Generally, easement cannot be extended to other parcels
1. Technical misuse (formalistically it’s a trespass)
2. Brown – weighin
ross are transferable
1. Primarily result is economic benefit (Ex. railroads, telephone lines, power lines)
II. Appurtenant generally transfers w/ dominant estate – fused to dominant
A. Exception: parties intend personal easement (language & circumstances)
1. Or terms provide appurtenant extinguished upon transfer
2. Owner of servient estate can buy back right of easement (release)
3. Cannot change appurtenant to in gross b/c shatters idea of fusion & no longer associated by limited parcel
B. Ambiguous Presumptions:
**All presumptions are rebuttable – introduce evidence or surrounding circumstances**
1. Appurtenance
2. Grant of fee (unless use wording “right of way”)
C. Servient estate owner
1. Burden runs if (a) original parties intend (presumed) it to run and (b) notice is given
a. Intent: strongly presumed parties intend burden to run
b. Notice: Actual notice, Constructive notice (visual appearance of land) or Record notice (easement is in the original grant)
21. Express Easements: Termination and Extinguishment
A. By Terms of Grant or Reservation
1. Time limit – for 10 years
2. Purpose – “to rebuild after hurricane of 2005”
a. Created for purpose and purpose can no longer be accomplished
3. Condition – “appurtenant for so long as property used as a place of worship
a. Once not used for church – condition triggered and easement is gone
b. Pavlik→ defeasance clause “if easement not used for x for 1 year”
1. Once met – easement gone (also look to consideration & intent)
4. Who is dictating when easement lapses or ends → grantor
B. Intent and Acts of Easement Owner
1. Release – writing that expresses the present intent to relinquish appurtenant or in gross easement. a. Ex. 3 could be release if letter clearly expressed intent to release
b. Don’t use writing – oral statement → could use estoppelargument
2. Severance → easement extinguished
a. Appropriate remedy – easement lost (don’t want to transfer it the right way)
b. Written instrument satisfying requirements
3. Abandonment → unequivocal conduct manifesting intent + unequivocal act
a. Non-use alone is not enough
