Easements

Easements A readily identifiable stick in a bundle of property rights Consistent with the segment theory of property, easements assign rights to parties for limited use or possession of land

Easements Private Public By Dedication

Private Easements In Gross An easement owned by an individual or corporation A personal right that cannot be assigned or otherwise transferred Terminates on death of individual or dissolution of corporation

Private Easements Appurtenant Easements Attaches to property rather than as a right to an individual Requires two “estates” (dominant and servient) Dominant tenant has the right to use easement Servient tenant is burdened by the easement May be affirmative or negative Affirmative gives right to dominant tenant to use and access easement Negative restricts servient tenant’s rights in favor of the dominant tenant

Private Easements A B

Silver Spring Lakes

Private Easements Appurtenant Easements are transferable Transfer of dominant tenement includes easement across servient tenement Transfer of servient tenement includes the burden of the easement What if dominant tenant purchases servient tenant’s land? Easement terminates (cannot own property across one’s own land)

Private Easements Creation by Implication By reservation By grant By way of necessity

Private Easement Creation by Reservation or Grant Requires prior existence and use of the easement Prior use must have been: Apparent Permanent Continuous Necessary for enjoyment of the property granted

A B

Private Easements By way of Necessity No prior existence or use is required Requirements: Must be unity in ownership of dominant and servient estates at time of conveyance or some prior time Easement must be necessary to access and egress property Necessity for easement existed at time of conveyance

A B

Private Easements Easements by Estoppel An easement granted “in good faith” (i.e., not on paper) The grantor of an easement can be “estopped” from denying access to grantee if the easement was granted in good faith Usually as a result of property purchase

Hob Nob Dispute

Private Easements Easement by Prescription Works in a way similar to adverse possession While adverse possession ripens into title of land, prescriptive rights mature into easement Five requirements Use must begin and continue without the actual or implied permission of landowner (must be adverse to owner of land) Use must be open and notorious Use must be exclusive Use must be in same place within definite lines Use must be continuous and interrupted

Private Easements Termination of Private Easements Transfer of servient estate without notice to buyer Operation of Law (foreclosure, etc.) Abandonment Failure of Condition Merger Expiration of Designated Term Adverse Possession Expiration of Purposes Misuse Change of Condition Grant of Release

Public Easements Right and enjoyment of easement is granted to public or community Can be created in three manners By dedication By prescription By condemnation

Utility Easement (example)

Public Easements Easement by Dedication Transfer of interest in land in easement, but not in title to land Voluntary transfer Statutory dedication Must be carried out in compliance with applicable statutes

Public Easements Easement by Dedication Common Law Dedication Requires four elements Person is competent to dedicate Public is served by dedication Dedication is actually offered to public Offer of dedication must be accepted

Public Easements Dedications may be expressed or implied Express dedication Declared written or orally Implied Dedication Declared by affirmative actions by owner Declared by inaction or acquiescence on owner’s part

Public Easements Easements by Prescription Similar to private creation (I.e., similar to adverse possession) Two important caveats Public prescriptive easement must not be used strictly for pleasure or recreation Use must be exclusive and not shared by the owner

Public Easements Easement by Condemnation Public agency forcing private owner to grant easement Must be for public purpose Cannot condemn more land than necessary Owner must be compensated Owner must be afforded due process

Public Easements Termination of Public Easements Abandonment passive Vacating a dedicated plat active