Chapter 4

nonpossessory land interest

don’t own the land, but can use it

—types: easement, license, covenant

easement

a liberty (freedom), privilege, or advantage in another’s property

—you don’t own it, but you can legally use it

—types: appurtenant, in gross, affirmative, negative

easement appurtenant

an easement that attaches to, or benefits, a particular tract of land

—helping a neighbor/tenant; benefits neighboring landowners

—right of way

easement in gross

an easement not created to benefit any landowner regarding a particular tract of land

—benefits someone else that is not a neighbor

—ex: utility companies; they have this to be able to work on the utility lines when needed

affirmative easement

when an owner of the easement can use another’s land

—allowing someone to use the land

—ex: B allowing/affirming A and C to use the easement

negative easement

one in which the holders of the easements prevent other property owners from doing the following:

1. prevents the use of property in a particular way (ex: you can’t farm on this land)

2. prevent acts on the property (ex: placing restrictions on building heights on the property)

—negate or take away, so you can’t use

parties to easements

dominant estate and servient estate

dominant estate

the property owner by the easement holder

—who is using the easement

—ex: C and A to B in Figure 4.1

servient estate

the property through which the easement runs

—land with easement on it

—ex: B to A and C in Figure 4.1

creation of easements

—by express grant

—by express reservation

—by necessity

—by prescription

easement by express grant

an easement given in a deed by the original landowner to provide a means of access for the purchaser of one part of the land

—expressly granting use to someone else

easement by express reservation

an easement reserved in a deed by the original landowner to provide a means of access across a purchaser’s land

—expressly reserving use for themselves

—knowing that an easement will be needed when you sell a portion of your land, so writing that in the deed

easement by necessity

given by circumstances that require it

—it’s implied/assumed; no one talked about it or wrote it down

—created because it’s necessary

easement by prescription

the process of acquiring easement through adverse use of the easement over a required period of time

—it’s implied/assumed; no one talked about it or wrote it down

—four elements must be met: continuous, open and notorious, actual use, hostile

adverse use

means that the person using the land did not get permission from the landowner to use it

four elements to get an easement by prescription

1. continuous (using for a certain period of time; in MS it’s 10 years)

2. open and notorious (landowner could obviously see property was being used; in his face)

3. actual use (actually been using the land)

4. hostile (never had permission to use the land)

ways to terminate an easement

one owner, no necessity, abandonment

one owner

if dominant estate and servient estate are owned by the same person, then there’s no need for an easement

no necessity

won’t need an easement now because it’s not necessary to have one

—ex: if a street opens up next to the dominant estate’s property

abandonment

must prove two things:

—intent (mental requirement)

—conduct (action requirement)

license

a right to use land in the possession of another

—can be stopped at any time; as opposed to an easement which is used indefinitely

—ex: hunting license on someone else’s lad

covenant

a restriction placed in a deed that is, in effect, a nonpossessory interest in land

—covers the whole land; as opposed to negative easements which cover a specific section of land

—ex: Homeowner’s Association