Easements In Depth

Easement Appurtenant – Attached to a piece of land

Easement In Gross – Attached to an individual or Entity

Easements - easements are most often created out of the express agreement of the servient landowner
to allow another to come upon his land

 Easements are burdens upon the land over which they run
 all into a legal classification called "encumbrances on title
 will reduce the market value of that title
o landowner cannot use his land as freely
 Easements therefore may terminate when the servient parcel is transferred to a purchaser who
takes without notice

affirmative easement

 An affirmative easement entitles its holder to come upon the land of another for a limited
purpose. The key aspect of this entitlement is the right of presence - over a road or a path, the
laying or use of a pipe, or the running of a utility wire - on another's land.

negative easement 

 A negative easement is completely different. It gives its holder no right to be present in any form
on another's land. Rather, a negative easement gives its holder the right to prevent an owner of
land from using her own land in certain ways that would otherwise be permitted. Negative
easements are often characterized as "veto" rights in the sense that they allow one landowner
to veto the plans of another if those plans violate the terms of the negative easement.
 negative easements are nearly always appurtenant easements.

Types of Negative Easements

 Light
 Air
 Support
 Access to water

Today all states recognize

1. Easements of view
2. Solar easements
3. Conservation easements

TERMINATION OF EASEMENTS

Both the benefits and the burdens of easements appurtenant run with the land to successive owners.
Burden of an easement in gross normally runs with the land and the benefit of an easement in gross
often is assignable to a new benefit holder.

Easements may terminate either expressly or by operation of law

EXPRESS TERMINATIONS

SOF requires

 Creation of Express easement to be in writing

 Termination of Express easement to be in writing
o Terminated in 2 ways
 Terminated by Creation
o The instrument creating the easement may expressly provide
for its termination
o The dominant party, the holder of the benefit of an easement in
gross or the owner of the estate benefited by an easement
appurtenant, may "release" the easement in a separate written
document.
 Termination through Operation of Law
o Where
1. the easement holder expressly agreed to the
termination of the easement but failed to put it in
writing. This may be because no writing was ever
attempted or it may be that the writing used did not
satisfy the requirements of the Statute of Frauds, or
2. the easement holder never consented to termination of
the easement but the circumstances lead the law to
conclude that the easement was terminated despite
that lack of consent.
o servient landowner will have to show that the termination
occurred through operation of law.
 Termination through lack of notice
o SERVIENT PARCEL
1. If the servient owner took title to the servient parcel
without actual notice, record notice or inquiry notice
of the easement burdening his land, the easement is
terminated by operation of law.
o BURDENED PARCEL
1. This rule applies only to lack of notice on the part of the
owner of the burdened parcel.
 An easement is not terminated when a new
owner of the dominant parcel takes without
notice of the benefit. The law presumes that
 that owner would want the benefit even if he
did not know of it at the time he took title.
 MERGER
o basic principle of the law of easements
1. that a landowner cannot have an easement over her
own land. Where an owner uses one portion or parcel
of her land to benefit another portion or parcel, the
law speaks of this as a "quasi-easement.
 Prescription (Adverse Possession)
o using it openly, notoriously, adversely and continuously for the
required period
o Just as an easement may be created by prescription, any
easement may be ended by prescription.
o easement that is expressly created by the parties may be
terminated by prescription through the acts of the servient
landowner.
o Easements may be terminated by prescription no matter how
they were originally created
1. Note that it is not necessary to D's claim that C have
tried to use the easement during this period. As long as
D's activity makes it obvious that C's demand to use the
easement would be denied, D's actions are sufficiently
hostile to C's interest.
2. servient landowner can terminate an easement through
prescription by using his land in a way sufficiently
adverse to the holder of the easement
3. the holder of an easement may expressly terminate an
easement by giving a written release.
 Estoppel
o focuses on the behavior of the servient landowner
o majority of jurisdictions (but not all jurisdictions) have
recognized that the easement should be treated as impliedly
terminated through estoppel
o termination through estoppel requires
1. that the easement holder has, in essence, promised not
to enforce or further claim the right to use the
easement,
2. that the servient owner has reasonably relied on that
promise, and
3. that the servient owner has acted to his detriment
(usually by the expenditure of money) on that promise.
 Abandonment
 o termination through abandonment focuses on the behavior of
the dominant landowner or holder of the benefit of the
easement in gross
o Termination through abandonment occurs when the dominant
landowner by physical conduct manifests an intention never to
use the easement again
1. mere nonuse by the easement holder is never treated
as an abandonment
2. must do something completely inconsistent with any
further claim to the easement.
 Necessity
o one purpose only, to give access to a parcel that is landlocked
o necessity ends, as where the dominant landowner in no longer
landlocked, the easement by necessity is terminated.
o Easements are terminated for lack of necessity only when they
were created out of necessity and easements are only created
out of necessity to give access to landlocked land
 Destruction
o an easement may be terminated by destruction of the burdened
portion of the servient estate.
o through no fault or action of the servient landowner