Property II- Hill- Spring 2006- Mazzuca-

Property II- Hill- Spring 2006- Mazzuca- - I Easements A...

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I. Easements A. Affirmative easement-entitles holder to do a physical act on the land of another (right of way) B. Negative easement-enables the holder to prevent the owner from making certain uses of that land (light and air) C. Easements appurtenant-to a particular piece of land 1. Dominant tenement-land for whose benefit the appurtenant easement is created 2. Servient tenement-land that is burdened by the easement 3. Passes with ownership of dominant parcel D. Easement in gross-one whose benefit is personal to the holder and not tied to any piece of land (an easement for Aaron to use my swimming pool) 1. Generally not assignable or divisible E. Profit-the right to go onto the land of another and remove the soil or a product of it. 1. Is functionally identical to easements in gross 2. Under English law an easement could not be in gross-not relevant now F. Creation of easements 1. express grant a. State of frauds must be satisfied-if it is not, a license will be created b. Words creating-must be for a specific, relatively narrow purpose c. Reservation in grantor d. Creation in stranger to the deed i. At common law could not create an easement in a third party ii. Some modern courts allow 2. Creation by implication a. Exception to Statue of frauds b. Requirements i. Land is being divided up so that the owner is selling part or multiple parts ii. The use existed prior to the severance-quasi easement a. Not absolutely necessary in some courts b. In courts where it is necessary, it must be apparent-not necessarily visible c. Documents referring to the fact that the use will exist in the future may be used d. Permanent and continuous iii. Easement is at least reasonably necessary a. Minority of courts does not require b. Necessity will be most apparent when multiple parcels are conveyed at once c. Easement of light and air, cannot, in most states, be created by implication 3. Easement of necessity-two parcels are so situated that an easement over one is strictly necessary a. Courts require that at one time, both parcels were under concurrent ownership b. Duration is only for so long as the necessity exists 4. Easement by prescription-similar to adverse possession a. At common law, the fiction of a lost grant was created, by which it was assumed in the distant pass, the holder of the claimed servient estate granted an easement to the holder of the claimed dominant estate. b. American courts decline to use the lost grant fiction, and instead refer to the statute of limitations for adverse possession and apply it by analogy to easements c. Statutory period begins to elapse when the owner of the servient tenement gains a cause of action i. Therefore, easement of light and air cannot be acquired by prescription d. Tolling occurs where owner of servient tenement had disability e. Use must be adverse, not permissive i. It is possible for the use to shift from permissive to adverse or vice versa f. Use must be open and notorious, such that the owner of the servient tenement would know of use g. Use must be continuous and uninterrupted
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h. Use need not be exclusive
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Property II- Hill- Spring 2006- Mazzuca- - I Easements A...

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