Nonpossessory Interests

Holy but [title examiner] Holey, but [geologist] Holey butt [exploitation manager] nonpossessory interest in land, creating a right to use land possessed by someone else . Affirmative holder is entitled to make beneficial use of the servient estate. Negative holder may compel the servient tenement to refrain from engaging in an activity on the servient estate (e.g., building a structure in excess of three stories). Limited to: (i) light , (ii) air , (iii) lateral and subjacent support , and (iv) flow of an artificial stream. Benefits the holder in his physical use or enjoyment of another tract of land. Two tracts : dominant (the estate benefited by the easement) servient (the estate subjected to the easement right). Passes with the transfer of the benefited land, regardless of whether mentioned in the conveyance. Burden of the easement also passes automatically with the servient estate unless the new owner is a bona fide purchaser with no actual or constructive notice. Holder acquires a right to use the servient tenement independent of his possession of another tract of land. i.e., the easement benefits the holder rather than another parcel. An easement in gross for the holder’s personal benefit (e.g., right to swim in the pond on Blackacre) is not transferable. Easement that serves an economic or commercial interest (e.g., the right to construct pipelines on Blackacre) is transferable. NONPOSSESSORY INTERESTS Real covenant/ Easement License Profit Equitable Servitude Definition A grant of an Permission to go on Right to take part of Promise to do or not to interest in land that to another’s land the land or a do something on the allows someone to product of the land land use another’s land from another’s land Writing Generally required. Not required. Required. Required. Note: An invalid Exception: Equitable oral easement is a servitude may be license implied from common scheme of development of residential subdivision Termination Stated Conditions Usually revocable at Same as Easement Release Release will. Merger Merger May be irrevocable Condemnation Abandonment if coupled with an Also equitable defenses Estoppel interest or if may apply to Prescription licensor estopped by enforcement of End of Necessity licensee’s servitude. expenditures Express Grant Express Reservation Implication Easement for more than one year must be in writing and signed by the holder of the servient tenement. A grant of easement must comply with all the formal requisites of a deed An easement by reservation arises when a grantor conveys title to land, but reserves the right to continue to use the tract for a special purpose. Easement by implication is created by operation of law; it is an exception to the Statute of Frauds. Aside from the easement automatically implied with any grant of a profit , there are two types of easements by implication: 1. Implied from Existing Use (“Quasi-Easement”) 2. Implied Without Any Existing Use Easement may be implied if: a) Prior to the division of a single tract, b) An apparent and continuous use exists on the “servient” part, c) That is reasonably necessary to the enjoyment of the “dominant” part , and d) Court determines the parties intended the use after division of the land. Subdivision A recorded plat or map that shows streets leading to the lots; buyers have implied easements to use the streets to access their lots. Profit a Prendre Holder has an implied easement to pass over the surface of the land and to use it as reasonably necessary to extract the product. Grant of a portion of tract with no access to a public road except over the remaining land of the Grantor. The Grantor has the right to locate the easement. Like adverse possession. Use must be: (i) Open and notorious (i.e., discoverable upon inspection); (ii) Adverse (without the owner’s permission); (iii) Continuous and uninterrupted; and (iv) For the statutory period. Stated Conditions Unity of Ownership Release Abandonment Estoppel Prescription Necessity Condemnation and Destruction Original easement grant may specify when or under what conditions the easement will terminate. Same person acquires ownership of both the easement and the servient estate, the estate merges and the easement is merged . Even with later separation, easement not automatically revived. The unity must be complete (e.g., the holder of the easement must acquire an interest in the servient tenement of equal or greater duration than the duration of the easement privilege). Easement (including an easement in gross, which is otherwise inalienable) can be terminated by a obtaining a release from the owner of the easement to the owner of the servient tenement. Extinguished when its holder demonstrates by physical action (e.g., building structure that blocks access to easement on adjoining lot) an intent to permanently abandon the easement. Expressing a wish to abandon does not extinguish the easement Nonuse does not extinguish the easement. Oral expressions of an intent to abandon do not terminate an easement unless in writing (release) or accompanied by action (abandonment). But if the owner of the servient estate changes his position in reasonable reliance on the representations made or conduct by the owner of the easement, the easement terminates through estoppel. To terminate an easement by prescription there must be an adverse, continuous interruption of the use for the prescription period. Easements created by necessity expire as soon as the necessity ends. Condemnation of the servient estate extinguishes all easements [notice, hearing and payment]. Involuntary destruction of a structure in which there is an easement extinguishes the easement; voluntary destruction of such a structure does not. Privilege to go upon the land of another; License is not an interest in land; Merely a privilege, revocable at the will of the licensor; Personal to the licensee, inalienable . Any attempt to transfer a license results in revocation by operation of law. .

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