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Property 2 Outline

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This is an extract of our Property 2 Outline document, which we sell as part of our Property 2 Outlines collection written by the top tier of Widener University Commonwealth Law School students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Property 2 Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Property 2 Outline

Gives a party the right to physically enter and use the property of another
A legal interest in real property

Tied up in the property

Benefits one owner of the property

Dominant and servient estate
In Gross

Not tied up with a parcel of property

No dominant estate

A right to do something on someone else's land
Usually has to be in writing

Needs to satisfy the statute of frauds
Rule against reservations in third parties

You cannot reserve an easement to a 3rd party when conveying land
 Majority Rule
 Minority rule allows for reservations in a 3rd party
Expressed Easement

If ambiguous presumed to be appurtenant unless it can be rebutted by the facts surrounding the grant

Always presumed to be fee simple

Favors grantee
Non-Express Easements

Easements by prescription
 Continuity
 Use of easement was continuous and uninterrupted

Just putting up signs and asking someone to stop is not an interruption
 Does not have to be exclusive generally

Person claiming the easement just has to be the primary and only consistent user
 Hostility
 User acted as owner and not merely one with permission

There is a presumption of permissive use by the alleged easement holder
 Notoriety
 Use has to be reasonably visible to record owner

Record owner does not have to know it was on their land

Objective standard
 Landowner can't play dumb Required Period
 Claimant must have engaged in adverse use for required period
Easements by Estoppel
 Permission
 Conduct by the owner of the servient estate
 Detrimental Estate
 Reliance by the party given permission
Easements implied by existing use
 Unity of ownership of 2 parcels
 Can be between 2 different companies with common owners

Look for common owner, similar construction plans, and common use
 When the parcels were separated, one of the parcels visibly or apparently made some use of the other parcel
 The use must have been continuous at the time the parcels were separated
 Continuous use of the quasi-easement must be reasonably necessary to the owner of the parcel claiming the benefit of the easement
 A quasi-easement is a pretend easement that a person has over their own land before they divide the property
Easements implied by necessity
 Unity of ownership of the land that later becomes the dominant and servient parcels
 Owner must transfer part of larger tract in way that creates a landlocked parcel
 Easement must be necessary for the landlocked parcel to reach the road at the time of severance
 Needs strict necessity

A license from another owner is not an objection





An easement appurtenant to one parcel of land may not be extended by the owner of the dominant estate to other parcels owned by him to which the easement is not appurtenant
 Can be adjoining or distinct tracts
 Ordinarily the relief is an injunction
 Needs actual and substantial injury sustained by the person seeking injunction

Express Terms
 Most easements are permanent
 Some have a limited duration

 An easement will be terminated if the holder of the dominant estate executes a written release

Merger An easement will be terminated if at any point in time the dominant and servient parcels are owned by the same person

 An easement is terminated if it is abandoned by the owner of the benefit.
 It is an issue of intent
 Mere non-use of the easement will not constitute abandonment of an easement

 Just as an easement can be created by prescription, an easement can be terminated by prescription

 Easements may be terminated by estoppel

Recording Acts
 May terminate an unrecorded easement on the sale of the servient parcel to a good faith purchaser

Implied necessity
 Ends when the necessity ends
Changed circumstances and Relocation

An easement for a particular purpose terminates when it becomes impossible to use the easement for the purpose intended in the granting instrument

A prescriptive easement does not terminate when necessity disappears

An express easement does not terminate when necessity disappear
Beach and Public Trust

Public Trust
 Area of land that cannot be privately owned
 Held by the government for use of by the public
 People cannot keep you out of it
 On a beach this is the foreshore

Mean high tide line to the water

Private owners may be obliged to provide reasonable access
 Circumstances where owner of dry sand area must allow public access
 Factors test to determine

Location of the dry sand in relation to the foreshore

Extend and availability of publicly-owned upland sand area

Nature and extent of the public demand

Usage of the upland sand land by the owner
Negative Easements

Dominant estate keeps owner of servient estate from doing something
 Example: Agricultural Easements

4 Types of negative easements recognized by common law
 Blocking your windows
 Interfering with air flowing to your land in a defined channel
 Removing support of your building
 Interfering with flow of water in an artificial stream

Buy the full version of these notes or essay plans and more in our Property 2 Outlines.