Rights to use and to limit others’ use of property [last updated 10.6]

Easements vs licenses

licenses = revocable at any time (unless easement of estoppel applies); easements = irrevocable

lease

A lease conveys a possessory estate in land (a leasehold interest, such as a term of years) granting exclusive legal possession and control over the premises. leaseholder retains ultimate legal control over the property

license definition

Licenses = permission to enter or use another person's property

temporary, permissive privilege that allows a person to perform an act or enter onto another's land that would otherwise constitute a trespass

• A license is not an interest in land. As a general rule, it can be revoked at any time (unless easement of estoppel applies)

Effect of Property Transfer for license

When the underlying property (the servient parcel) is sold or transferred to a new owner, the license auto expires

how are licenses created

can be created orally or implicitly (eg, via custom)

easement definition

Easements = an actual non-possessory interest in land

formal property interest in land that grants a holder the right to use a portion of another’s property for a specific, limited purpose. It does not convey fee simple title or ownership of the land itself.

irrevocable!

how are easements created

typically created when new neighborhoods are developed; can also be created by agmt

NOTE: usually requires a writing (Statute of Frauds) but can be done w/o (ie implied easement)

Effect of Property Sale on easement

Remains in effect and binds new owners

EGs of licenses

stepping onto land owned by someone else with their permission (eg school, friend home, mall, etc.)

EGs of easements

UTILITIES. Telephone wires, underground water and sewer pipes, etc., that cross real property owned by various people. → telephone company, the water company, etc., have easements

• look for agmt language that says eg “right of way” → this lang specifically describes this legal right to cross a defined portion of land

2 types of easements + EGs

• Appurtenant (ie, attached) easement

  • EG: if Landowner A purchases an easement across neighboring Landowner B's land to access the public street, A's parcel is the dominant parcel and B's is the servient parcel.

• Easements in gross

  • EG: utility easements owned by phone, water or electric co.’s to run wires and pipes across private property

definitions of the 2 types of easements

1. Appurtenant (ie attached) Easement: Created to benefit a specific neighboring parcel of land (the dominant parcel); it automatically transfers with the dominant parcel whenever that land is sold.

   1. both servient and dominant parcel

2. Easement in Gross: Granted to a specific person or commercial entity (such as a utility company installing power or water lines) independently of any neighboring property ownership, meaning there is no dominant parcel (but there is servient parcel)

   1. note: EIG doesn’t benefit any particular piece of land

Easements by Estoppel + legal effect

DEF: if licensor L grants license for A to use their land & A spends time/substantial $$ in reliance on that permission w L’s knowledge, L can’t later revoke that license

Legal Effect: When licensor is estopped from revoking permission; license becomes irrevocable (so functions like an easement)

is an easement = fee simple and why/why not?

NO

• Easement = conveys only a "right" or a "right of way" across a property

• fee simple = conveys "a piece or parcel of land" or "a strip of land"

main disadvantage of easement by estoppel

An easement by estoppel is creates an "invisible" property right for person who substantially relied on orig owner’s promise; they can use the easement irrevocable. EBE isn't written down in public records, which unfairly traps innocent new buyers who have no idea the right exists.

main disadvantage of easement by estoppel - example

Sam orally permits Bob to use part of his lot; Bob relies by spending $20K on driveway/garage; Sam acquiesces → easement by estoppel. Sam sells to Getty, who checks records; no easement recorded. G trapped bc B has irrevocable right to use B’s driveway.

Urbaitis v. Commonwealth Edison (easements & licenses)

interpreting ambig language to figure out if agmt = easement or license; look at granting clause (ie, primary operative clause defining the nature and extent of the estate being transferred)

• If "Right-of-Way" is in the Granting Clause → It conveys a right to use the land (an easement).

• If the Granting Clause Conveys "The Land" → It conveys full ownership (fee simple title)

HOLDING: bc granting clause said “conveys and warrants” + “parcel/strip of land” → D (railroad) had fee simple title; incidental “right-of-way” language elsewhere in agmt only described location, not an easement.

Richardson v Franc (easements)

easement by estoppel! ct basically applies this rule

• substantial landscaping investments estopped revocation → irrevocable license/easement by estoppel to maintain landscaping.

Facts: S (not named party) owned servient parcel; silently allowed neighbor to plant, irrigate, and maintain landscaping for 20 yrs → implied license. the successor neighbors, R and F, continued this relationship for 6 yrs, and then F (S’s successor) tried to revoke

3 categories of implied easements

prescriptive easements, easements implied from prior use, and easements implied from necessity