Real Property: Easements

Easements come up in quite a number of contexts on the MBE. Two areas that you'll need to know well are the creation of easements, and the termination of easements.

Creation of Easements:

An easement can be created through an express grant. Because an easement is an interest in land, the Statute of Frauds applies, and any express grant of an easement must be in writing, and signed by the party to be charged (in this case, the holder of the servient tenement--the person whose land will be burdened by the easement). A grantor can also convey title to land but reserve for himself the right to continue to use that land for a specific purpose. In essence, the grantor has reserved an easement for himself, and as such, the same formalities for an express grant apply.

Another method of creation, and one that is often tested, is an easement by implication. The important difference here is that an easement by implication need not comply with the Statute of Frauds, and, therefore, a writing is not required.

One easement by implication is an easement implied from existing use. There are strict requirements that have to be satisfied for this easement to apply. Look for a situation in which there is one tract of land. Prior to the division of that single tract, an apparent and continuous use exists on the part of the land that is not being granted to another. That use is necessary for the enjoyment of the part of the land that is being granted to another. Finally, the court must determine that the parties to the transaction intended the use to continue after the division of the land.

The next easement by implication is an easement by necessity. An easement by necessity arises when a landowner sells a portion of his tract and by this division deprives one lot of access to a public road or utility line. The owner of the land that is now deprived of such necessity has the right to cross the tract of land that will allow the owner to reach the public road or utility line.

Finally, an easement by implication can be created by prescription. This is, essentially, adverse possession. Acquiring an easement by prescription requires that one uses another's land (rather than possesses the land as in traditional adverse possession) and that the use is open and notorious, adverse, continuous and uninterrupted, for the statutory period.

Termination of Easements:

Not unlike the creation of easements, easements can be terminated in a variety of ways. One is by stated conditions in the writing of an express easement. The original easement grant can specify when or under what conditions the easement will terminate.

In addition, an easement can terminate due to merger. If the same person acquires ownership of both the easement and the servient estate, the easement is destroyed. So, for example, assume that X is the owner of an easement allowing X to cross over Y's land. If X subsequently purchases Y's land from Y, X's easement over Y's land terminates, as X now owns the easement, and the servient estate, causing the easement to merge into the servient estate.

The holder of the easement can also abandon the easement. In order for abandonment to apply, the holder must demonstrate by physical action (for example, building a wall that blocks access to the easement) an intent to permanently abandon the easement. Note these requirements carefully, as a correct answer choice will often ride on the requirement of intent. Merely expressing a wish to abandon will not suffice.

However, if the intent to permanently abandon the easement is not obvious, consider estoppel as a method of termination. Oral expressions of an intent to abandon, without any physical action accompanying that expression, generally do not rise to the level of abandonment of the easement. But if the owner of the servient estate changes his position in reasonable reliance on the representations made by the owner of the easement, the easement terminates through estoppel.

If an easement was created by necessity, the easement expires as soon as the necessity ends.

Lastly, an easement can terminate by prescription, just as an easement can be created through prescription. To terminate by this method, there must be an adverse, continuous interruption of the use of the easement for the statutory period.