Tuesday, October 25, 2011

Property Law Outline: Lease, Licensese and Easements : Final Exam Outline

I used this outline on my Property law exam, and received an A in the course. When the issue of Covenants came up, I worked through this outline quickly and wrote as much as I could applying the rules to the facts outlined on the exam.

Example of how to outline a final exam:
There was a lease.
Lease could be tenancy at will, periodic tenancy, tenancy for years

Show what each is, dismiss the ones that it’s not

Statute? Which applies? s.2, s.4

(Facts don’t say there is a writing)

to comply with the statute of frauds, statute provides:

We don’t know for sure that...

If it is:

If it isn’t: how will court interpret?

Lease is subject to recording acts.

(Fact’s don’t state lease recorded)

If it is a lease, if want to be protected, should record, if didn’t record, would not be protected.

A accessing through lot 2&3. Both owned by O, so not a problem.

Access based on a license or a lease?

(Have not seen a copy of the lease)

If not stated on the lease, court may imply license.

License not subject to the statute of frauds. If it was coupled with an interest it would be irrevocable.

Written agreement could contain an easement.


Not the beginning of a prescriptive easement b/c permissive.

Could be a quasi-easement.

Lease, license, or EASEMENT?

1. Is there an easement?

Is it a license? (Baseball Publishing).

2. How could have it been created?

3. What kind of easement is it?

HOW was the easement CREATED?
Express grant?
Adverse Possession (Easement by Prescription)?
(see Easement Creation)
What KIND of Easement?
The failure to create an easement because the parties did not execute a writing generally results in the grantee’s receiving a license. A license is revocable at will (Mullendore Theatres). Some courts, in equity, will enforce the license under an easement by estoppel or irrevocable license theory. Easement by estoppel arises when the court concludes by the facts of the case that the servient estate holder cannot deny the existence of the easement (Baseball Publishing).
Easement: An easement is an irrevocable right to use another person’s land for a specific purpose.
An easement is an interest in land in the possession of another which (a) entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists; (b) entitles him to protection as against third persons from interference in such use or enjoyment; (c) is not subject to the will of the possessor of the land; (d) is not a normal incident of the possession of any land possessed by the owner of the interest; and (e) is capable of creation by conveyance.

Easement holder and landowner both may use the same area of land, but the landowners use may not unreasonably interfere with the easement holder’s use of the easement for its intended purpose.

---Types of Easements---
Easement in gross (personal easement) -Baseball Publishing

An easement in gross benefits a person, whether or not the person owns any specific property (or any property at all). There is no dominant or servient estate.

Unless assignable, ends at the holder’s (grantee’s) death.

Must be clear from the express grant or surrounding circumstances.

Easement appurtenant Are there two CONTIGUOUS lots?

An easement appurtenant is a real property interest that benefits the owner or possessor of a particular parcel of land. It effects at least two parcels of land, and both parcels must be contiguous, meaning the property (rights) are touching. For example, if there are 3 touching lots and the property owner lives on the west lot and has the right to cross the the eastern lot, if his right to cross the eastern lot includes the right to cross the middle lot, there would be an easement appurtenant.

Owner of one parcel has an easement over the other parcel of land.

Is the easement not being MAINTAINED?

Servient Estate- property burdened by the easement.

Used when talking about both Easement appurtenant and in gross.

Responsible for maintaining the easement.

Dominant Estate- property benefited by the easement.

Used only when talking about Easement appurtenant.

Did the property owner DIE or SELL the land with the easement?

Passes with the property it benefits.

Has the potential to continue indefinitely.

Courts express a constructional preference for easement appurtenant.

Is there a ROAD dividing the parcels?

A road can be said to be a public easement. The court may find that the property rights continue to the center of the road if the deed is silent.

Does the public road extend onto the property?

It may be found that the road extends some distance (20 ft.) onto the property. This allows construction and utility crews to work on the roadside and not effect the property.

Was an easement MISUSED?

In Penn Bowling Center v. Hot Shoppes it was held that using the easement in conjunction with any land not part of the dominate state was misuse of the easement. One cannot use an easement for the benefit of a non-dominate estate, or a new lot. It doesn’t have to be used more than before to be considered misused. The court may hold that once an easement is overburdened, it is abandoned.

Brown v. Voss stated that if an easement is appurtenant to a particular parcel of land, any extension thereof to other parcels is a misuse of the easement.

May have an action for an injunction? (See Brown v. Voss)

Is there an easement for ingress and egress?

Non-exclusive right of way?

An easement for ingress and egress is not an easement for use, such as parking. An easement for ingress and egress is a right of way to access a parcel. Parking blocks the way, and one cannot block an easement. Parking can be differentiated from loading and unloading. However, loading and unloading must be one continuous operation. If there is an interruption, such as a coffee break, it is parking, which is inconsistent with an easement for ingress and egress.

If exclusive -- dominate estate has a right to maintain.

if non-exclusive -- servient estate has to maintain.

Misuse of an easement for ingress and egress?

(Many contiguous parcels?)

O1 owns 1, right to use contiguous lots 2, 3, 4. Rights of 2 touch 3, 4. Rights of 3 touch 4... (see diagram on Brown v. Voss)

Does rights of ingress/egress include BUILDING/CONSTRUCTION on the property?

look at INTENT(intent of what the easement was for). PAST USE (used to build other buildings?), how CURRENTLY USED (delivery trucks, vans/large trucks?), ROAD (strength/width/materials made out of/bridges/culverts, etc. -- If road is 8 ft wide, might be impossible to get construction equipment in.)

Profit a prendre

A profit a prendre is a right to enter another’s land, without liability for trespass, and remove minerals, timber, wild animals, fish, soil, water, or other things constituting a natural part of the land.

Person usually has a profit in only one of the listed items

An easement to venture onto the property as necessary to enjoy the profits interest.

A license exists when a landowner permits another person to use property, permission revocable at the O’s will. It can either be a right of use, like an easement, or a right to possess, like a lease.

Licenses in some circumstances become irrevocable, and in practice, become indistinguishable from easements.

Affirmative and Negative Easements
Not absolute rights of ownership.
Since not evidenced by the use of the servient estate, their nature and scope must be more precisely defined in the deed creating them.
Affirmative Easements give the holder the right to go onto the servient estate for a specific purpose

i.e. parking on a property.

Most easements are affirmative easements.

Negative Easements give the holder a right to prevent the possessor of the servient estate from doing some act on the servient estate.

(Old) Right of airflow, Right to light, Right to channeled water flow, Right to lateral support:

(New) View easements, Solar easements, Conservation easements

---Easement Creation---
Most easements result from an express grant or express reservation in a deed.
Must be in writing to satisfy the statute of frauds.
Express grants of easements are usually created by deed.

Grantee owns the dominate estate and grantor retains the servient estate.

If the grantor was to have an easement over the grantee’s land, the deed would likely contain a clause reversing an easement/excepting an easement.

Reservation is a grant of the property to a purchaser and a regrant of the easement back to the original grantor.

Exception was merely a statement the property might be subject to an outstanding easement.

Reservation to a stranger to the deed

Grantor selling part or all of property, wishes to provide that a third party be given an easement over the transferred land

Willard v. First Church of Christ, Scientist

landowner sold property on the condition a church located across the street would have an easement to park on the transferred property.

Ct. interpreted the deed as transferring the property as reserving a parking easement to the church.

Can the grantor reserve an interest (easement) to a stranger to the deed?

Yes, grantor’s intent = wanted church to have easement.

Rule = ascertain and carry out the grantor’s intent. Grantor’s intent controls.

Easement by Implication Has there been a separation of title?

Arises when there has been a separation of title, use before the separation took place which continued so long and was so obvious/manifest as to show that it was meant to be permanent, and it must appear that the easement is necessary to the beneficial enjoyment of the land granted or retained.

Factors. All must have been present at the time of severance.

(1) Intent at severance, (2) at least reasonably necessary (the more necessary the better), (3) Terms present? Express or Implied? (paid for it?), (4) Was there consideration present?, (5) Prior use, also known as Quasi Easement (most important factor), (6) knowledge at the time of severance, (7) is the claimant either the conveyor or the conveyee? If not expressly put into the deed the court is less likely to find, (8) was the easement made against a simultaneous conveyance? and (9) were there reciprocal benefits to both the conveyor and the conveyee?

There is always a limitation in an easement by Implication. “As long as implied.”

Has implication been lost?

        • Misuse (use for something else)
        • Abandonment? (once stop using the easement it goes away forever) If need arises again, must prove by strict necessity. (can’t say need it back to save money, must be practicable + possible or a great amount of money).
        • Merger (if one O, might not come back later on. Implication?)
        • Destroyed (house burns down) and not built promptly.

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