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Easements · complete doctrine guide

Creation, scope, transfer, and termination

An easement is a nonpossessory right to use someone else's land for a specific purpose, and this module covers the four ways one can be created, how far its scope reaches, whether it survives a transfer of the underlying land, and how it eventually ends. An express easement, like most other interests in land, generally must satisfy the Statute of Frauds and be created in a signed writing. An easement implied from prior use instead requires that the land was once under common ownership before being severed into separate parcels, that the challenged use was apparent and continuous before that severance, and that the use is reasonably necessary to the enjoyment of the benefited parcel, while an easement by strict necessity requires that same prior common ownership plus a necessity, generally for access, that actually existed at the exact moment of severance.

TESTED STATUSCurrent MBE, MEE where applicable, and NextGen foundational doctrine
01 · COMPLETE FRAMEWORK

Black-letter propositions

  1. 01

    An express easement generally satisfies the Statute of Frauds.

  2. 02

    Prior-use implication requires severance, apparent continuous use, and reasonable necessity; necessity requires prior common ownership and necessity at severance.

  3. 03

    Prescription resembles adverse possession through open, notorious, adverse, continuous use for the statutory period.

  4. 04

    Appurtenant easements benefit a dominant parcel and ordinarily transfer with it.

  5. 05

    Termination can occur by release, merger, abandonment plus conduct, estoppel, prescription, expiration, or end of necessity.

02 · ORDER OF ANALYSIS

Use this attack sequence under time

1

Frame the issue

Identify dominant and servient parcels.

2

Resolve the next checkpoint

Choose creation theory and timing.

3

Resolve the next checkpoint

Define permitted scope and overburden.

4

Resolve the next checkpoint

Trace transfer.

5

Finish the conclusion

Test termination.

03 · DISTINCTIONS THAT CREATE POINTS

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.
04 · WORKED APPLICATION

Worked example

O conveys a landlocked parcel from a larger tract with no road access.

Model analysis

If necessity existed at severance and satisfies the jurisdictional degree, an easement by necessity may arise over retained land.

05 · CLOSED-BOOK RETRIEVAL

Practice this topic

06 · FROM THE PRIMARY TEXT

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.

07 · FROM THE PRIMARY TEXT

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.

08 · QUICK ANSWERS

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.

SOURCE DESK

Primary sources

Cornell LII Wex: easement↗Cornell LII Wex: license↗Cornell LII Wex: prescriptive easement↗

Governing text for creation, scope, transfer, and termination

Uniform property acts (Uniform Law Commission) ↗