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Real Property
Session 11
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Interests in Property - Easements
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Types of Easements
• Affirmative
• A party has the right to a limited enjoyment of another’s property
• Negative Easements
• Forbids The Owner Of A Servient Parcel From Using His Own Land In Some Way
• Examples
• Blocking Windows Of A Dominant Parcel Owner (Interference With Light)
• Interfering With Air Flow In A Defined Channel (Interference With Air)
• Removing The Lateral Or Subsurface Support Of The
Dominant Parcel Owner’s Adjacent Building (Interference With Support)
• Interfering With The Water Flow In An Artificial Stream Across The Dominant Parcel Owner’s Land (Interference With An Artificial Stream Flow)
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Interests in Property - Easements
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Easement Appurtenant
• An easement that is held by someone in the capacity of owner of a different parcel of land
• Parcels involved in an easement appurtenant:
• Dominant Tenement (the land that holds the easement)
• Servient Tenement (the land that is subject to the easement)
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Easement in Gross
• An easement held by someone in his or her personal capacity
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Examples
• O grants A (as owner of an adjacent parcel) the right of ingress and egress over Blackacre
• Easement Appurtenant
• If A sells his land to B, the easement is transferred to B as well (since it won’t serve its purpose for A anymore)
• O grants A the right to use his pier for loading and unloading his boat
• Easement in Gross
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Easements and Licenses – General Rules
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Easement Appurtenant
• CANNOT be transferred from one person to another unless the dominant tenement is transferred
• Automatically goes to any buyer or grantee of the dominant tenement
• Stays in existence if the servient tenement is transferred (“burden and benefit run with the land”)
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Easement in Gross
• Generally cannot be transferred
• If the easement is commercial, it can be transferred, as long as the scope will not be widened
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Easements – Creation
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Express Grant: Giving over the easement by deed (must be
in writing)
• O grants easement in Blackacre to A allowing A to install a pipeline beneath Blackacre
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Express Reservation: Reserving the interest when selling
the property; also must be noted in the deed
• O grants Blackacre to A, reserving the right to travel on
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Easements – Creation
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By Implication
• Prior Use
• Part of a bigger parcel is sold;
• There is a continuous prior use by the owner that would
be reasonably necessary for the use and enjoyment of the property;
• The prior use was continuous
• The parties must have intended that the prior use should
be allowed to continue after the transfer of the property.
• It must have been apparent to any observer that the use
has been taking place (so the buyer should have known about it).
• Example
• Road example from previous slide if express reservation not made
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Easements – Creation
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By Implication
• Necessity
• Subdivision of property leaves one parcel that NEEDS an easement for access to something critical (e.g. a road)
• Example
• Landlocked parcel
• Prescription: Adverse Possession
• All elements the same as adverse possession except for
the exclusivity requirement
• Example
• Ongoing use of road for period longer than adverse possession statute prescribes
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Scope of Easements
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Created Expressly
• Limited to whatever was expressed.
• Unforeseeable changed circumstances can expand the scope of an easement to what is reasonable under the new circumstances
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Created Through Implication
• Limited to the required usage (or whatever the prior use
was)
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Created Through Prescription
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Easements – Methods of Termination
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Expiration
• If the easement was for a set time only
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Merger of Title
• If both parcels in an easement appurtenant ever come to be
owned by the same person, the easement is extinguished
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Release
• By the holder
• Must be in writing
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Abandonment
• An action that shows a clear intent to stop using the easement
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Easements – Methods of Termination
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Cessation of Purpose
• Applies to easement by necessity ONLY
• The original necessity that caused the easement to be created becomes obsolete
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Destruction of the Servient Tenement
• Only through no fault of the owner of the servient tenement
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Prescription
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Interests in Property – Licenses and
Profits
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License
• Not an easement at all
• Permission granted by the property owner for another person to use that property
• Can usually be revoked at any time unless “irrevocable”
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Profit
• Right to enter and remove something from the owner’s land that at common law was considered to be part of the land(e.g., timber, minerals, fish or game)
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General Rules
• Exceptions to “revocable at any time”
• Intent
• Consideration
• Coupled with a profit right
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Quick Quiz
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Easements and Licenses
• Easement or License?
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Reliable Washer Service v. Delmar Associates, 49 Misc.2d
348 (1966)
• What if an apartment house owner gives A the sole and exclusive right to install and maintain laundry machines in the owner’s apartment house? Easement or license?
• If this is a license, it is not binding on a new owner of the apartment house.
• If this is an easement, it is binding on a new owner who has notice of it.
• Courts usually construe agreements such as these to be licenses, primarily because they do not give A exclusive possession of any space.
