Property II-Dernbach Spring 2011
I. Servitudes – Non possessory right to control land use of others
a. Easement – right to another’s land
§ Interest in land that entitles holder to use land owned or possessed by another person
§ Statute of Frauds applies (Needs to be in writing technically)
§ Non-revocable and usually permanent
§ Transferable
· Limits on Easement Creation
§ No easements in 3rd party (traditional rule some states retain)
§ Negative easements cannot be created by prescription
§ Only the following easements on OWN Land have been recognized so far
§ Lateral and sub-adjacent support
§ Right to water flow (depends on state law)
§ Conservation (prevent development)
§ Historic preservation (this could be affirmative too)
§ Right to light and view not being blocked
§ This right will arise only by contract or government regulation NOT by common law
o Except possibly for solar energy easement
· Termination of Easements
§ By written agreement
§ By own terms
§ By merger (both estates owned by same person)
§ By abandonment
o Conduct of easement holder indicates intent to abandon mere non-use is not enough
§ Adverse possession or prescription by servient estate holder who takes back easement rights
§ Frustration of purpose – purpose of easement has become impossible to accomplish or no longer serves its purpose
§ Marketable title acts – in some states easements must periodically be rerecorded to be bound to future owners
I. Types of Easements
A. Appurtenant and in gross
1. Easement appurtenant-an easement that benefits the owner of another parcel of land
o attached to the land (not a person or entity) and cannot be severed from the land ownership package (BOTH benefit and burden run with land ownership)
§ Automatically transfer as they run with land ownership
§ Cannot be severed from land ownership
o Benefited parcel=dominant estate
o Burdened parcel=servient estate
2. Easement in gross-an easement that is designed to deliver a personal benefit rather than to benefit a landowner
o burden attaches to land, but benefit does not (it is personal and/or benefit is unrelated to land ownership)
§ Generally transferable if intended to be
§ Depends on nature of easement and intent of grantors
B. Affirmative and Negative Easements
1. Affirmative-permits a person to use the servient estate in a specified manner
§ Affirmative easement in gross-if allow a fisherman to cross to get to river
2. Negative-confers only the right to prevent specified uses of the servient estate; conveys NO right to use the servient es
e of frauds—writing signed by the grantor
o By Reservation-when an easement is “reserved” in favor of the grantor or a third party [New easement]
§ First Baptist Church—easement by implied reservation
Easement Appurtenant—benefited the church to use the parking lot
o By an exception- pre-existing easement conveyed to a third party
2. Easements By Estoppel (irrevocable License)–terminates once the reliance stops
§ Landowner Conduct: Landowner induces licensee to act in reliance on access to property (by granting license or acquiescence)
§ Licensee Conduct: Acts in reasonable reliance (invests money or labor or etc.)
§ License is made irrevocable and lasts “so long as its nature calls for” (usually permanent)
§ Licenses
§ Permission to enter the licensor’s land
§ Are ubiquitous, may be oral or written, and are revocable at any time unless the licensor make the license irrevocable, either expressly or by his conduct
§ Three elements are necessary to create an irrevocable license:
(1) a license; and
(2) the licensee’s expenditure of substantial money or labor in good faith reliance;
and
(3) the licensor’s knowledge or reasonable expectation that reliance will occur.
