Black-letter propositions
- 01
An express easement generally satisfies the Statute of Frauds.
- 02
Prior-use implication requires severance, apparent continuous use, and reasonable necessity; necessity requires prior common ownership and necessity at severance.
- 03
Prescription resembles adverse possession through open, notorious, adverse, continuous use for the statutory period.
- 04
Appurtenant easements benefit a dominant parcel and ordinarily transfer with it.
- 05
Termination can occur by release, merger, abandonment plus conduct, estoppel, prescription, expiration, or end of necessity.
Use this attack sequence under time
Frame the issue
Identify dominant and servient parcels.
Resolve the next checkpoint
Choose creation theory and timing.
Resolve the next checkpoint
Define permitted scope and overburden.
Resolve the next checkpoint
Trace transfer.
Finish the conclusion
Test termination.
Common wrong turns
- Mere nonuse is not abandonment without intent plus conduct.
- Later-created necessity does not support easement by necessity.
- An easement holder can make reasonable repairs but not unreasonably increase burden.
Worked example
O conveys a landlocked parcel from a larger tract with no road access.
If necessity existed at severance and satisfies the jurisdictional degree, an easement by necessity may arise over retained land.
Practice this topic
Easements and licenses
Cornell defines an easement as the grant of a nonpossessory property interest giving the holder permission to use another person's land. An easement appurtenant involves two parcels, a servient tenement that bears the burden and a dominant tenement that benefits. The two types are affirmative, which lets the holder do something on the grantor's land such as travel over it, and negative.
A license is permission granted by a qualified authority allowing something that would otherwise be prohibited. Licenses may have territorial or time limits and can be revoked or forfeited, and they are limited by the licensor's power to grant them.
Prescription
A prescriptive easement is acquired through open and notorious use of an owner's land that is adverse to the owner's rights and continuous and uninterrupted for a period of years defined by state law. Cornell says use may be continuous if consistent with the needs of the use, and a negative easement cannot be acquired by prescription because there is no trespass on the owner's land.
Sort the facts by how the right was created, express, implied or by prescription, and then by its scope and any event that ended it.
Cornell adds that a license can be revoked or forfeited and is limited by the licensor's power, which is why it differs from an easement, a nonpossessory property interest. The difference matters on an exam because the two interests are created and ended differently, so identify which one the facts describe before you discuss termination. Cornell also says the permissions a license grants are limited by the licensor's power to confer them, a limit the easement summary does not state in those terms.
Frequently asked questions
How should I analyze creation, scope, transfer, and termination on the bar exam?+
Identify dominant and servient parcels. Choose creation theory and timing. Define permitted scope and overburden. Trace transfer. Test termination.
What is an easement?+
The grant of a nonpossessory property interest that gives the holder permission to use another person's land, according to Cornell.
What are the dominant and servient tenements?+
In an easement appurtenant, the servient tenement bears the burden and the dominant tenement benefits from the easement.
What is an affirmative easement?+
One that gives the holder the right to do something on the grantor's land, such as travel over it.
How is a prescriptive easement acquired?+
Through open and notorious, adverse, continuous and uninterrupted use for the period of years set by state law.
Can a negative easement be acquired by prescription?+
No. Cornell says a negative easement cannot be acquired through prescription because there is no trespass on the owner's land.