Rights in real property

The Open-Book Floor: Rights That Travel Without Possession

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.

The Birth Certificate: Six Routes to an Easement

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.

The Four Corners of Use: Burden, Transfer, and Maintenance

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.

Exit Routes: Relocation, Release, and Termination

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.

Promises That Run: Damages, Injunctions, and Defenses

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:

• Was there a writing when required, and did the original parties intend the promise to bind successors?
• Does the promise touch and concern the land, meaning it relates to the land’s use, value, or legal relations?
• Does the successor have the required notice?
• Is there the required privity for the burden and benefit to run?
• Did the benefit attach to a benefited parcel, and did the burden attach to the burdened parcel?

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.

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.

High-Yield Points - ⚡ Biggest Takeaways

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.