Easements

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Easements Introduction
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How do easements differ from estates?

• Estates givepossession.
• Easements givea limited right ofuse, but
  notpossession

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Do these terms describe easements or estates?

• possessory / nonpossessory
• incorporeal / corporeal
• Lies in grant / lies in livery

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Why is an easement an incorporeal hereditament?

• Because its not possessory (corporeal), but...
• it can be inherited (i.e., it passes as real
  estate, not as personal property).

5
O deeds a strip of land 50 feet wide for a
railroad right of way.
Owner
Does the railroad get an easement or an estate?
Why does it matter?
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FAA Regulated 500' rural 1000' urban
Air rights (up to FAA regulated airspace)
surface
Oil deposit (subsurface rights)
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Easement or estate Why does it matter?

• Minerals, oil or gas ownership
• Air rights
• Use-restrictive scope language
• Exclusivity of holders rights
• Compensation if condemned
• Does abandonment lead to loss of ownership?

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Whats wrong with this question? Did the grantee
receive an easement or a fee simple?
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The duration of an easement might be

• In fee simple absolute
• In fee simple defeasible
• (e.g., so long as a train uses the track every
  month)
• For life
• For a fixed term
• Any other duration for which an estate can be
  limited

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Dominant Servient
1
2
Easement
street
All easements have servient land. ? Appurtenant
easements also have dominant land. ? But
easements in gross dont.
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Easements in gross (No dominant land)
Can you think of some examples?
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Is every railroad track right-of- way an easement
in gross?
Factory
B
Siding
A
Main railroad line
13
Was the fox-hunting right in Milbrook Hunt an
easement or a licence? Why does it matter? Which
type of easement was it?
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Why was this an easement and not a license?

• Called a lease and easement agreement
• Specific term of 75 years.
• No right in the original lessor or Smith to
  terminate.
• But lessor had right to relocate the
  improvements and trails.

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1987 Easement
Original owner Millbrook
Deed
Smith

• Is the issue the running of the burden or the
  benefit?
• Whats the burdened (servient) land? Whats the
  benefitted (dominant) land?
• Is it necessary to show that Smith had notice of
  the easement?
• Did he? How?

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Whats unique about easements in gross?

• They dont transfer automatically with the
  dominant benefitted land (because there isnt
  any).
• They cant be transferred at all by the
  benefitted party unless theyre for a commercial
  purpose.

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Note that the Restatement does not follow this
rule.

• Instead, it distinguishes between...

• personal servitudes (which cant be
  transferred) and
• non-personal servitudes (which can be
  transferred).
• Either may be appurtenant or in gross.
• Can a profit be appurtenant as well as in
  gross?

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If you were creating a scenic, historic, or
environmental servitude, would you use an
easement or a covenant?

• Covenants with benefits in gross the burden may
  not run at all! (London County Council v. Allen)
• Easements with benefits in gross the burden will
  run but the benefit cant be transferred unless
  its for a commercial purpose.

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There are 4 ways of creating easements
Express easements are created by words. The other
3 types are created by conduct, not by words.
GRANT of EXPRESSEASEMENT
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Four ways of creating easements

• Express
• The Statute of Frauds applies only to express
  easements
• Implied
• Necessity
• Prescription

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Why does the Statute of Frauds apply to express
easements and not to the other three types?
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Dominant Servient
1
2
Easement
street
How can an express appurtenant easement be
created?
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Creating an express easement Express
Grant Owner 2 Owner 1
Dominant Servient
1
2
Easement
street
Easement Deed
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Is it necessary to provide in the grant

• A legal description of the servient land?
• A legal description of the location of the
  easement on the servient land?
• A legal description of the dominant land (if the
  easement is appurtenant)?
• Where do these descrip-tions come from?

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Which is better?
Lot B
Lot B
27'
19'
An easement for a driveway over Lot B as shown
in Plat Book 32, Page 12, Official Records of
Boone County
An easement for a driveway over Lot B as shown
in Plat Book 32, Page 12, Official Records of
Boone County, with the northerly boundary of said
easement beginning 27' north from the southwest
corner of Lot B, and thence...
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What should be stated in the grant of the
easement?

• State that it is an easement
• Location (describe both the dominant land and the
  easement itself)
• Scope of use
• Appurtenant or in gross?
• If appurtenant, to what dominant land?
• Exclusive or nonexclusive?
• Duration
• Maintenance responsibility

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Creating an express easement Express
Reservation Owner 1 owns both lots. Owner
1 Owner 2
Deed to Lot 2, reserving easement to benefit Lot 1
Dominant Servient
1
2
Easement
street
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Creating an express easement Reservation
benefitting a 3rd party Developer sells Lot 1
to O1. Developer Owner 2
Deed to Lot 2, reserving easement for Lot 1
Dominant Servient
1
2
Easement
street
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What happens to an easement when one of the
affected parcels of land is transferred?
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Dominant Servient
1
2
Easement
If Lot 1 is sold to A, does A also get the
easement?
A
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Dominant Servient
1
2
Easement
If Lot 2 is sold to B, does B take subject to the
easement?
B
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How can a purchaser of land get notice that it is
encumbered by an easement?
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Does this rule follow from ease-ment law or the
recording acts?

• If its from easement law, B will take free of
  the easement if B lacks notice.
• If its from the recording acts, B will take free
  of the easement only if B lacks notice, pays
  value, and (in half the states) records first.
• (Youll recall that covenant law is similarly
  uncertain.)

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1900 Agreement
Hannah Knutson Ricenbaw Kraus
Drain
Easement?
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Ricenbaugh v. Kraus

• Could this drain line have become a
  prescriptive easement? (Similar to adverse
  possession).
• What is the argument against it?
• Should an oral grant of an easement be deemed
  permission and hence bar a prescriptive
  easement?

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License

• Is it an interest in land?
• Is the Statute of Frauds applicable?
• What remedies for interference?
• Are licenses always revocable?

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Easements by estoppel (from licenses)

• Is it now an easement or an irrevocable license?
  (Does it matter?)
• If an easement is created by estoppel (from a
  license), how long does it last?
• Suppose Knutson had told Hannah, You can put in
  a drain line, but it is only a license, and I can
  revoke it at any time.

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Berg v. Ting

• What was the intended purpose of the easement?

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Tract A
Preliminary Plat
Hanson/ Young
A
Cahill/ Ting
B
C
E
F
D
G
Windemere Rd.
Tract B
Berg
Tract A
Tract B
Lake Washington
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Final Plat
Hanson/ Young
A
Cahill/ Ting
B
C
E
D
Windemere Rd.
F
Berg
Lake Washington
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Whats wrong with the legal description?

• The exact location was to be determined in the
  future?
• The lots were configured so that the description
  of the servient land was nonsensical?
• There was no overall description of the servient
  land?

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What does part performance require?

• Some combination (at least two) of the following
  three factors...

• Taking possession
• Payment of part of price
• Making improvements
• Plus
• Clear proof of the terms of the contract itself.

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What was missing here?

• Only one of the 3 factors was present.
• Rest. 2d 129 allows consideration of other
  factors.
• But Wash. court rejects the Rest.
• Does the PP doctrine apply to grants of
  easements?
• Was there ever an agreement on (a) the exact
  location of this easement, or (b) the exact
  servient land?

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The end