Real Property: Easements STEP ONE: What type of interest in land is claimed? EASEMENTS: USE RIGHTS HELD BY ANOTHER EXPRESS EASEMENTS IMPLIED EASEMENTS QUASI APPURTENANT IMPLIED BY EXPRESS BY EXPRESS IMPLIED BY PRESCRIPTIVE EASEMENT IN GROSS TO OTHER LAND NECESSITY GRANT RESERVATION PRIOR USE BY ESTOPPEL STEP TWO: What will the effect be? Three questions A. Was the interest validly created?

SOF applies Created by If grantor Easement Court creates if >1 year When a tract court, following attempts to Owner of a holder has Must be two when a tract is Easements is divided same rules as create an oral present posses. special use tracts of land divided, quasi generally need creating a land adverse posses. easem., SOF interest right in the & easm. holder easem. if signed writing locked parcel, except NOT means failure. conveys title & servient benefitS in the parties intended & formalitites easem. by exclusive use Result is a reserves a use tenement use of her own prior use to of a deed to be necessity over (because not license. BUT right. independent land (domin. continue & created or the other. possessory) & if reas. & det. of ownership tenement) easm. reas. destroyed adverse w/ relied upon, of other land. neces. to enjoy (e.g. release). dominant part. claim of right, irrevocable = not hostile. easement. B. What are the characteristics of the interest? Presumed to Individually Once court Extent of be perpetual Same char. held interest. creates, same necessity Irrevocable duration. Linked to Easem. holder as by grant. May be char. as other determines license or Holder has use ownership of held to have Only difference personal (Bob easements. scope of easm. easement by right but no dominant adversely is grantor is can swim in If in favor of Servient estoppel? possession. tenement. “possessed” the easement the pond) or grantee, said to parcel owner Same result: Owner of Will run w/ the use right. holder commericial be by implied has right to works just servient tenmt. dominant land Adverse use (AT&T can run grant; in favor locate the like any other has possession automatically. determines the phone lines.) of grantor: by easem. if easement. limited by use scope. implied reservn. reasonable. of other. C. What are the limitations on the interest? ALL easements may be terminated by: (1) unity of ownership (no revival); (2) release (must be by conveyance); (3) abandonment (physical act, not mere words or nonuse); (4) estoppel; (5) prescription; (6) involuntary destruction or condemnation of servient estate. Use of easem. Terms may provide that easement terminates at certain time. by necess. NOT Only if prior adverse use to C/L & major: use EXCEPT: Terminates create prescp. reservation can if ambiguous Variation: w/ when necessity easem. BUT only be for court will find Generally not NO prior use: terminates. when necess. easement transferable. subdivision grantor. Trend ends, easem. appurtenant. streets or to toward reserv. ends. Use after access a profit. for 3rd parties. that IS adverse. STEP THREE: Conveyancing issues

Issue of creation by grant or Usually only Benefit Appurtenant Appurtenant When court reservation does not affect alienable if passes w/o only, so follow only, so follow creates the alienability. Each of these commercial. notice; burden those rules. those rules. easement, it methods can be used to create But can be only w/ notice. will designate an easement in gross or an conveyed to Not transfbl. it to be in easement appurtentant, which is serv. estate w/o transfer of gross or the distinction that matters in owner to end domint. tenmt. appurtenant & terms of later conveyance. ➡ by release. EXCEPT to those rules of (Release must serv. estate alienability will always be by owner to end be followed. conveyance.) by release.

STEP FOUR: Remedies

If easement holder exceeds scope, easement is said to be “surcharged”: servient owner may get injunction or damages, but easement stays. Minor and foreseeable changes in use do not exceed the scope (e.g. easement for horse & buggy widened slightly to accomodate motor cars). If the scope of express easement is ambiguous, resolved in grantee's favor. Subdivision of dominant parcel exceeds scope if resulting use is unreasonable.

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