Hold the distinction between an easement, a license, and a profit. Know the labels appurtenant, in gross, affirmative, and negative. Recognize express creation, prior use, necessity, prescription, estoppel, and reservation. For land-use promises, recognize real covenant, equitable servitude, intent, notice, touch and concern, privity, running benefit, running burden, damages, and injunction.
Those labels and the sequence of questions are the floor you need available quickly. Exact element wording, exception lists, statutory periods, and numbered subsections are contents to locate in supplied authority, not material to reproduce from memory.
An easement is a nonpossessory right to use another’s land. An affirmative easement permits an act, such as crossing or running utilities. A negative easement restricts the servient owner from using land in a specified way, traditionally involving light, air, support, or water. A negative land-use promise is often analyzed as a covenant or equitable servitude rather than as a traditional easement.
An easement appurtenant benefits a particular parcel, the dominant estate, and burdens another, the servient estate. It ordinarily passes automatically with both parcels. An easement in gross benefits a person or entity rather than a parcel. It may be transferable unless it is personal in nature or the creating instrument limits transfer.
A license is permission to enter or use land. It is ordinarily revocable, personal, and nontransferable, and it normally does not satisfy the writing requirement for an easement. Reliance can make a license irrevocable for a time, creating an easement by estoppel. A profit permits removal of part of the soil or its products, such as timber, minerals, or crops. A profit can be appurtenant or in gross and is generally treated like an easement for creation, transfer, and termination questions.
Start with the instrument. An express easement ordinarily requires a signed writing satisfying the Statute of Frauds, identifying the parties, land, and intended right with reasonable certainty. A deed can grant an easement to another or reserve one for the grantor. A reservation is the grantor’s retention of part of the land itself when conveying; an exception creates a new right in favor of the grantor or a third party. Read the supplied instrument for duration, location, users, maintenance, and transfer limits.
If the instrument is silent, ask whether the parcels were once under common ownership and were later severed. The principal implied routes are prior use and necessity.
An easement implied from prior use requires a pre-severance use that was apparent, continuous or regularly used, and reasonably necessary to the use of the parcel that benefits. The prior use must have existed while one owner controlled both parcels. The question is what use the parties likely intended to continue when they divided the land.
An easement by necessity also usually arises from severance of commonly owned land, but its foundation is necessity rather than an established pre-severance use. The severance must leave one parcel without a legally adequate route to a public road or another needed facility. Strict necessity usually must exist when the parcels are divided. A merely convenient route is not enough.
Figure: A geometric parcel diagram showing a road outside Parcel A, a path across Parcel A to enclosed Parcel B, and labels separating the prior-use route from the landlocked-at-severance route.
The difference is concrete. O owns a tract divided into Parcel A, fronting a public road, and Parcel B, behind it. Before conveying either parcel, O visibly drives across A to reach B. If O conveys B and the route is reasonably necessary, B may claim an easement implied from prior use. If O conveys B without any preexisting route but the conveyance leaves B landlocked, B may claim an easement by necessity. If B has a practical legal route to the road, necessity fails even though the route across A would be shorter.
An easement by prescription arises from use that is open, notorious, adverse, continuous for the statutory period, and under a claim of right. Permission defeats adversity. The supplied statute controls the period and any special rules about interruption, disability, or public land. Do not confuse prescription with prior use: prescription is based on post-severance adverse use, not common ownership and intended continuation.
An easement by estoppel may arise when the servient owner permits or represents a use, the claimant reasonably relies on that permission or representation, and the claimant substantially changes position. The doctrine commonly protects reliance on a license that would otherwise be revocable.
Use this decision path when a claimed easement is not plainly stated:
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Run the creation questions in this order: identify the claimed use; read for an express grant or reservation; if absent, test prior use; then necessity; then prescription; then estoppel. A “private road,” “right-of-way,” “shared driveway,” “utility corridor,” “landlocked lot,” “permission,” or long-used path should trigger this sequence.
First read the creating instrument, because it controls the right’s purpose, users, duration, location, and conditions. If the instrument does not fix a location, the parties’ intent and reasonable necessity usually determine it. A prescriptive easement is limited by the character and extent of the historical use. An easement implied from prior use is limited by the use that reasonably appears to have been intended at severance.
The easement holder may make all uses reasonably necessary for the stated purpose, but may not materially increase the burden on the servient estate. A dominant owner may usually subdivide the benefited parcel, and the easement passes with it, but use by additional parcels or dramatically heavier traffic can become overburdening. An appurtenant easement transfers with the land. An easement in gross is generally transferable unless personal or restricted by its terms. A license normally does not transfer.
Maintenance usually falls on the easement holder when the holder alone benefits from the route. The servient owner has no duty merely from ownership. The instrument can shift the duty, and shared use can support shared expense or a duty not to interfere with reasonable maintenance.
Return to A and B. If B has a right to use a driveway across A for residential access, ordinary vehicles and reasonable repairs are included. Turning the driveway into a delivery route for a warehouse may be an unreasonable increase in burden. The holder cannot widen the route merely because more land is later developed if the change materially burdens A.
Relocation requires careful sequencing. Read for a relocation clause or applicable statute. Without one, traditional common law generally prevents the servient owner from unilaterally moving the easement. An agreement, court order, or modern statute may permit relocation if the new route preserves utility, does not materially increase the burden, and does not impose the expense on the easement holder. The dominant owner likewise cannot shift the route whenever a more convenient location appears.
Check the instrument first for a stated expiration date, condition subsequent, or event that ends the right. A release by the easement holder extinguishes the right, ordinarily through a signed writing. Merger occurs when one person acquires both the dominant and servient estates with the required unity of ownership; the easement is absorbed into full ownership.
Abandonment requires intent to relinquish plus conduct showing that intent. Long nonuse alone is not abandonment. Blocking the route, surrendering the right in writing, or acting in a way inconsistent with continued ownership can supply the needed evidence.
An easement can terminate by prescription when the servient owner or another adversely uses or obstructs the easement for the statutory period in a manner inconsistent with the holder’s rights. Mere inconvenience or occasional obstruction is insufficient unless the supplied authority says otherwise. An easement by necessity commonly ends when the necessity ends, subject to the governing authority. Condemnation can extinguish or reduce the right, generally with compensation determined under applicable law.
Consent can also matter. A written agreement can release, modify, relocate, or terminate the right. A holder’s consent to a particular obstruction may waive an objection to that obstruction, but does not necessarily surrender the easement permanently.
A real covenant is a land-related promise enforced through money damages. An equitable servitude is a land-related promise traditionally enforced through an injunction or other equitable relief. Both can bind successors, but their checklists differ.
For a real covenant, ask:
Traditional real-covenant analysis commonly requires horizontal privity between the original covenanting parties for the burden to run, plus the appropriate vertical privity between a successor and the estate received. The benefit generally runs when the claimant succeeds to the benefited estate and the original parties intended that result. Use the supplied authority for the jurisdiction’s exact privity language.
For an equitable servitude, ask whether the promise is in a writing, whether the parties intended successor enforcement, whether the successor had actual, record, or inquiry notice, and whether the promise is sufficiently connected to the land. Traditional formulations also use a land-related touch-and-concern inquiry. Horizontal and vertical privity generally are not required for equitable enforcement. The successor must be a person against whom the restriction is enforceable and must have taken with the required notice.
When resources are supplied, locate the operative phrase-such as “enforceable when”-and turn each numbered or listed condition into a separate fact question. Then locate exceptions, such as changed conditions. Finally, identify who seeks relief, who owns the burdened parcel, and whether the requested remedy matches the doctrine.
For this question, the supplied provision states:
An equitable servitude is enforceable by an owner of a benefited parcel against a successor who holds a burdened parcel when:
(1) the restriction is in a writing signed by the person who imposed it;
(2) the original parties intended successors to be bound and benefited;
(3) the successor had actual, record, or inquiry notice before taking; and
(4) the restriction touches and concerns the land.
Horizontal and vertical privity are not required. A court may refuse an injunction for changed conditions only when the restriction’s purpose has become impossible or substantially useless throughout the benefited area; isolated violations do not establish that defense.
In 2018, O owned all 20 lots in Pine Court. O signed and recorded a declaration providing that each lot must be used only for residential purposes and that an owner of any lot could enforce the restriction against another lot.
The declaration stated that the restriction was intended to bind successors and benefit every lot. In 2022, O conveyed Lot 1 to C. The deed referred to the recorded declaration, and C also received a copy before taking title.
C then began operating an accounting office on Lot 1. N, who owns Lot 2, sued C for an injunction. Two other owners in Pine Court occasionally worked from home, but no other owner operated a separate commercial office.
Practice
Can N obtain an injunction against C?
Real-covenant damages and equitable-servitude injunctions are not mutually exclusive in every modern jurisdiction, but the supplied rule controls the item. Common defenses include lack of writing, no intent, inadequate notice, failure of the land-related requirement, missing privity for a real covenant, release, merger, consent, abandonment, and changed conditions. Changed conditions usually require a substantial transformation that defeats the restriction’s purpose, not a few violations. Abandonment of a covenant may require conduct showing an intent to relinquish it or widespread violations so pervasive that enforcement would be inequitable. A release or valid consent can waive enforcement by the releasing or consenting party; it does not automatically erase every owner’s separate right.
Express terms control an easement’s users, location, purpose, and maintenance. Prior use requires established pre-severance use, while necessity requires landlocking at severance. Nonuse alone never proves abandonment without intent to relinquish. Equitable servitudes generally require notice but not horizontal or vertical privity. Changed conditions require widespread transformation defeating the restriction’s purpose.
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1. A buyer signed a written contract to purchase a residential parcel. The contract required the seller to convey marketable title by general warranty deed, “subject only to zoning restrictions and recorded utility easements.” Before closing, a title search disclosed a recorded easement allowing the neighboring owner to use a driveway across the rear 20 feet of the parcel. The buyer had not previously known of the easement, which is not a utility easement. The seller refuses to obtain a release, arguing that the driveway is convenient, occupies little space, and does not prevent residential use. The buyer has not accepted a deed and asks whether the buyer must close. Which of the following is the most appropriate advice?
Answer: D. The buyer may refuse to close because the unexcepted driveway easement is an encumbrance that makes title unmarketable.
The buyer may refuse to close because the unexcepted driveway easement is an encumbrance that makes title unmarketable. - The contract permits only zoning restrictions and recorded utility easements, but the neighbor’s recorded driveway easement is neither. - Because the buyer has not accepted a deed, the buyer may refuse to close if the seller cannot convey the promised marketable title. The buyer must close because any recorded land-use right is treated as accepted when the buyer signs a sales contract. - Recording gives notice of the driveway easement, but it does not add that easement to the contract’s permitted exceptions. - The buyer agreed to accept recorded utility easements, not every recorded right affecting the parcel. The buyer must close because a beneficial easement cannot create a reasonable risk of litigation or impair marketability. - The seller’s view that the driveway is convenient does not eliminate the neighbor’s enforceable right to use the rear 20 feet. - An unexcepted easement encumbers title even if it occupies little space and leaves residential use possible. The buyer may rescind only if the neighbor’s use physically prevents construction of a residence on the property. - The buyer need not show that the driveway prevents construction; the contract requires marketable title, not merely land suitable for a residence. - The neighbor’s unexcepted right to cross the parcel is the title defect, regardless of whether a house can be built elsewhere on it.
2. Using only the supplied client file and legal resources, prepare an objective memorandum assessing whether the seller can deliver marketable title to Harbor Lot on the scheduled closing date. Address the recorded access easement, the neighbor's adverse-possession claim, the purchaser's available contractual responses, and the most important additional investigation. The client prefers to complete the purchase if reliable vehicle access and exclusive use of the waterfront can be secured. Do not analyze financing, environmental regulation, or matters outside the supplied sources.
3.
4. Two siblings own a warehouse as tenants in common, each holding a one-half interest. Without consulting the other sibling, one sibling signed a five-year lease purporting to lease the entire warehouse to a furniture company. The company took possession and changed the locks. The nonleasing sibling promptly demanded a key and access to store inventory in unused space. The company refused, asserting that its lease gives it exclusive possession during the five-year term. The nonleasing sibling has not agreed to the lease or previously surrendered possession. Which of the following is the most appropriate advice to the furniture company?
Answer: B. The lease transfers the owner's possessory rights, but the tenant cannot exclude the other cotenant from concurrent possession.
The lease transfers the owner's possessory rights, but the tenant cannot exclude the other cotenant from concurrent possession. - A tenant in common may lease that cotenant’s possessory rights without the other cotenant’s consent. - The furniture company takes those rights subject to the nonleasing sibling’s concurrent right to possess the whole warehouse, so it must allow access. The lease is void because one tenant in common cannot transfer any possessory right without the other cotenant's consent. - The leasing sibling could transfer that sibling’s own possessory rights without consulting the other sibling. - The lease is therefore not void, though it cannot extinguish the nonleasing sibling’s right of possession. The lease gives the tenant exclusive possession of the entire warehouse because each cotenant owns an undivided interest in the whole. - An undivided interest gives each sibling a right to possess the whole warehouse, not a power to exclude the other. - The furniture company cannot use the lease to justify changing the locks and refusing access to the nonleasing sibling. The lease transfers only a right to occupy one-half of the warehouse because the owner held a one-half ownership interest. - A one-half ownership interest is an undivided interest, not a designated half of the warehouse. - Without a partition, the furniture company’s transferred possessory rights and the nonleasing sibling’s rights extend concurrently throughout the property.
5. Three siblings acquired a farm under a deed conveying the property “to Alex, Blair, and Casey as joint tenants with right of survivorship.” Each sibling therefore held an equal undivided interest. A judgment creditor obtained a valid money judgment against Alex and recorded a judgment lien against Alex's interest in the farm. Before the creditor took any further action to execute on the lien, Alex died. Blair and Casey claim they now own the farm as surviving joint tenants, free of the creditor's lien. The creditor's lawyer asks whether the lien survives Alex's death. Which of the following best describes the creditor's rights?
Answer: C. Under the majority (lien theory) approach, a judgment lien does not sever a joint tenancy; upon Alex's death, Alex's interest is extinguished by the right of survivorship, and Blair and Casey take the farm free of the creditor's lien.
Under the majority (lien theory) approach, a judgment lien does not sever a joint tenancy; upon Alex's death, Alex's interest is extinguished by the right of survivorship, and Blair and Casey take the farm free of the creditor's lien. - Recording the judgment lien encumbered only Alex’s interest; under the majority lien-theory approach, it did not sever the joint tenancy. - Because Alex died before the creditor executed on the lien, survivorship extinguished Alex’s interest, and Blair and Casey took the farm free of that lien. The lien attached to Alex's interest before death, so it automatically survives against the farm in the creditor's favor. - The lien did attach to Alex’s interest when recorded, but attachment alone did not sever the joint tenancy. - Once Alex died, there was no remaining interest of Alex’s in the farm for the lien to burden. The creditor may enforce the lien against Blair's and Casey's interests in the entire farm because Alex's judgment debt was a joint obligation of all three siblings. - The creditor obtained a judgment against Alex, not against Blair or Casey. - Their interests were never subject to Alex’s judgment lien, and survivorship did not make them liable for Alex’s debt. The judgment lien automatically converted the joint tenancy into a tenancy in common, so the creditor may now execute on a one-third interest passing through Alex's estate. - Under the majority approach, recording a judgment lien is not a conveyance and does not automatically create a tenancy in common. - With the joint tenancy intact at Alex’s death, Alex’s interest passed by survivorship to Blair and Casey, not through Alex’s estate.
6. A seller owned two adjoining parcels. For 12 years, the seller used a paved driveway across the eastern parcel to reach a residence on the western parcel. The driveway was visible and regularly used. The seller then conveyed the western parcel to a buyer by a deed that did not mention the driveway. The western parcel also connects to a public road through a steep, unpaved strip that can be improved at substantial but not prohibitive cost. After closing, the seller blocked the paved driveway and asserted that the buyer had no right to cross the retained eastern parcel. The buyer seeks an injunction restoring access over the paved driveway. Which of the following is the buyer's strongest argument?
Answer: D. The buyer received an implied easement because the prior use was apparent, continuous, and reasonably necessary at severance.
The buyer received an implied easement because the prior use was apparent, continuous, and reasonably necessary at severance. - The seller’s visible, regularly used driveway served the western parcel for 12 years before the parcels were separated. - An implied easement from prior use requires reasonable necessity, not the lack of every alternative; improving the steep, unpaved strip would entail substantial cost. The buyer received a license because the seller informally permitted driveway use before the conveyance. - Before the conveyance, the seller owned both parcels and did not need permission to cross the eastern parcel. - A license is personal permission, not the property right the buyer claims arose when the seller conveyed the western parcel. The buyer obtained an easement by necessity because the parcel lacks any alternative route to a public road. - The western parcel has an alternative route to the public road through the steep, unpaved strip. - That strip can be improved at a cost that is substantial but not prohibitive, defeating the claimed strict necessity. The buyer obtained a prescriptive easement because the seller's longstanding use became adverse upon the sale. - The seller’s 12 years of driveway use occurred while the seller owned both parcels, so that use was not adverse. - The sale cannot retroactively turn the seller’s prior use into the adverse use required for a prescriptive easement.
1. What is the life tenant’s duty regarding waste?
A life tenant must avoid voluntary waste, permissive waste, and ameliorative waste that substantially changes the property’s character without the future interest holder’s consent. The majority rule permits reasonable alterations when the property’s market value is not harmed.
2. What is a fee simple subject to condition subsequent?
It may be terminated by the grantor’s exercise of a right of entry after a stated condition occurs, typically using language such as “but if” or “on condition that.” Termination is not automatic.
3. What is a fee simple determinable, and what interest does the grantor retain?
A fee simple determinable is an estate that automatically terminates upon the occurrence of a stated event, usually signaled by words such as “so long as” or “until.” The grantor retains a possibility of reverter.
4. What are common methods for terminating an easement?
An easement may terminate by its express terms, release, merger of the dominant and servient estates, abandonment shown by intent to abandon plus an act or omission, estoppel, prescription, or an end to the necessity for an easement by necessity.
5. What elements are generally required for an equitable servitude to bind successors?
The claimant must show a writing satisfying the Statute of Frauds or an applicable exception, intent that successors be bound, notice to the successor, and that the restriction touches and concerns the land or satisfies the Restatement’s benefit-and-burden test. The restriction must also be enforceable under any applicable public-policy limitation.
6. What elements are generally required to create an easement by necessity?
An easement by necessity requires severance of commonly owned parcels, necessity for access at the time of severance, and the necessity must result from the severance. It generally lasts only while the necessity continues.
7. What is the default form of concurrent ownership when a conveyance does not specify otherwise?
The majority rule is that co-owners take as tenants in common, with each owning an undivided fractional interest. A joint tenancy requires language creating survivorship, and a tenancy by the entirety generally requires a conveyance to married spouses where recognized.
8. What is the effect of one joint tenant’s conveyance of the tenant’s interest?
Under the majority rule, the conveyance severs the joint tenancy as to that interest, converting it into a tenancy in common while the remaining joint tenants retain survivorship rights between themselves.
9. What are the majority elements for an easement by prescription?
Use must be open and notorious, adverse or without permission, continuous and uninterrupted for the statutory period, and under a claim of right. The required period is set by the jurisdiction’s adverse-possession statute.
10. How is the scope of an easement determined?
The scope is determined first by the easement’s express terms; if unclear, courts consider the parties’ intent, the circumstances of creation, and reasonable use consistent with the easement’s purpose. The easement holder may not materially increase the burden on the servient estate.
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