Study guide
1.6 Easements and Servitudes
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1.6 Easements and Servitudes
Key Takeaways Explain This Topic AI
Easements appurtenant benefit a dominant estate and burden a servient estate
Easements in gross benefit a person rather than land and may be commercial or personal
Easements can be created expressly, by implication (prior use or necessity), or by prescription
Prescriptive easements require open, actual, continuous, hostile, and exclusive use for the statutory period
- Easements terminate by merger, release, abandonment, estoppel, or prescription
- Last updated: June 2026
An easement is a nonpossessory interest in land that grants the holder a right to use another's property for a specific purpose.
- Types of Easements
- Easement Appurtenant
Benefits the holder in their use of their own land .
Requirements:
- Dominant estate : Land that benefits from the easement
- Servient estate : Land burdened by the easement
Transfer : Runs with the land—transfers automatically when either estate is conveyed.
Example : A has a right to cross B's land to reach the public road. A's parcel is dominant; B's parcel is servient.
Easement in Gross
Benefits the holder personally , not in connection with land ownership.
Types:
- Commercial : Transferable and divisible (utility easements)
- Personal : Generally not transferable (permission to fish on land)
No dominant estate : Only the servient estate exists.
Affirmative vs. Negative Easements
- Type Right Granted Examples
- Affirmative To do something on servient land Cross property, install utilities
- Negative To prevent something on servient land Light, air, support, view (limited)
Common law recognized only four negative easements: light, air, water flow, and lateral/subjacent support. Modern law may expand this through conservation easements.
- Creation of Easements
- 1. Express Grant or Reservation
Created in writing, satisfying Statute of Frauds.
Grant : Servient owner conveys easement to another. Reservation : When conveying land, grantor reserves an easement over the conveyed parcel.
2. Implication by Prior Use
Requirements:
- Common ownership : Dominant and servient parcels previously under single owner
- Prior use : Quasi-easement existed during common ownership
- Apparent : Discoverable upon reasonable inspection
- Continuous : Not intermittent use
- Necessary : For reasonable enjoyment (strict necessity for reservations in some courts)
Example : O owns Lots 1 and 2. A driveway crosses Lot 2 to access Lot 1. O sells Lot 1 to A. A has an implied easement to continue using the driveway across Lot 2.
3. Implication by Necessity
Requirements:
- Severance : Parcels were under common ownership
- Strict necessity : At time of severance, easement was strictly necessary
- Purpose : Access (landlocked property)
Duration : Lasts only as long as necessity continues.
Example : O conveys an inner parcel to A, leaving A with no access to a public road. A has an implied easement of necessity across O's retained land.
4. Prescription
Similar to adverse possession but for use rights only.
Requirements (OACHE):
- Open and notorious : Use visible to a reasonable owner
- Actual : Physical use of the servient estate
- Continuous : Uninterrupted for statutory period (often 10-20 years)
- Hostile : Without permission
- Exclusive : Not shared with general public
Cannot create negative easement by prescription.
- Scope of Easements
- Express Easements
Scope determined by language of grant and intent of parties .
Implied and Prescriptive Easements
Limited to the use that existed at time of creation.
Changes in Use
Reasonable changes consistent with normal development are permitted. The servient owner cannot unilaterally relocate an easement, but court may allow relocation if:
- Servient owner pays expenses
- Dominant owner suffers no injury
- Surcharge
Excessive or unauthorized use does NOT terminate the easement. Servient owner may seek:
- Damages
- Injunction against improper use
- Transfer of Easements
- Easement Appurtenant
- Benefit : Transfers automatically with dominant estate (even if not mentioned)
- Burden : Runs with servient estate (requires notice to BFP under recording acts)
- Easement in Gross
- Commercial : Generally transferable and divisible
- Personal : Not transferable; terminates at holder's death
- Termination of Easements
- Method Description
- Expiration Term easement expires by its terms
- Merger Dominant and servient estates come under single ownership
- Release Written release by easement holder
- Abandonment Intent to abandon + physical act manifesting intent (non-use alone insufficient)
- Estoppel Servient owner relies on statement/conduct indicating abandonment
- Prescription Servient owner interferes with easement for statutory period
- Condemnation Government takes servient estate
- Destruction Involuntary destruction of servient estate (applies to structures)
- Related Interests
- Profit à Prendre
Right to enter land and remove something (minerals, timber, game).
- Created and terminated like easements
- Includes implied easement to access and remove the resource
- License
Permission to enter land for a specific purpose.
- Not an interest in land : No Statute of Frauds requirement
- Revocable at will by licensor (with exceptions)
Exceptions (irrevocable):
- License coupled with interest : Right to enter to retrieve belongings
- Estoppel : Licensee makes substantial improvements in reliance
License Termination Events:
- Revocation by licensor
- Death of licensor or conveyance of servient estate
- Death of licensee
- Any attempt to transfer the license (revoked by operation of law)
Easement by Estoppel Duration : Lasts until holder receives sufficient benefit to reimburse expenditures (not necessarily perpetual).
- BAR EXAM CRITICAL RULES
- Reservation for Third Parties (MAJORITY RULE)
Under the majority view , an easement can be reserved only for the grantor . An attempt to reserve an easement for a third party is VOID .
Example : O conveys "to A, reserving an easement for B." Under majority rule, the reservation for B is void—B gets nothing.
Minority/Restatement View : Some courts allow third-party reservations.
Failed Oral Easement = License
If a grantor orally grants an easement for more than one year, it violates the Statute of Frauds and is unenforceable.
Result : The grantee does NOT have a valid easement but DOES have a revocable license .
Prescriptive Easements and Public Land
Prescriptive easements generally CANNOT be acquired in public land.
"Exclusive" in Prescription Context
"Exclusive" does NOT mean sole use. It means the use is not shared with the whole world . The prescriptive user may share use with the servient owner.
Easement Appurtenant Transfer Limitation
An easement appurtenant cannot be conveyed apart from the dominant tenement .
Exception : It can be conveyed to the owner of the servient tenement to extinguish the easement.
Easement by Necessity - Location Rights
The owner of the servient parcel has the right to locate the easement. The dominant owner does not get to choose the path.
Subdivision of Dominant Estate
If the dominant parcel is subdivided , the lot owners will NOT succeed to the easement if doing so would unreasonably overburden the servient estate.
Merger - Complete Unity Requirement
For merger to occur, the unity must be complete : the duration of the servient tenement must be equal to or longer than the duration of the dominant tenement.
Example :
- Fee simple + fee simple = merger
- Fee simple dominant + life estate in servient = NO merger (life estate insufficient)
No Automatic Revival : If there is later separation of ownership, the easement is NOT automatically revived - it must be recreated.
BFP Termination of Easement
An easement may be terminated by sale of the servient estate to a BFP without notice (under recording act rules).
Courts Split : Whether servient estate subject to an implied easement (like necessity) would be transferred with or without the easement.
Voluntary vs. Involuntary Destruction
- Type Effect on Easement
- Involuntary destruction of structure Easement extinguished
- Voluntary destruction of structure Easement NOT extinguished
- Repair Obligations
- Situation Who Pays for Repairs
- Easement holder is sole user Easement holder pays
- Both parties use the easement Court apportions costs
- Profits à Prendre - Surcharge Termination
Unlike easements (where surcharge does NOT terminate), a profit may be extinguished through surcharge (misuse that overly burdens the servient estate).
Implied Easement with Profit : Implied in every profit is an easement entitling the holder to enter the servient estate and use it as reasonably necessary to extract the product.
Implied Easement by Plat/Subdivision
When lots are sold in a subdivision with reference to a recorded plat or map showing streets, buyers have implied easements to use:
- Streets shown on plat
- Alleys shown on plat
- Possibly parks and common areas shown on plat
This is a third type of implied easement (separate from prior use and necessity).