Easements – the
grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the
servient tenement. (i.e. the privilege to lay utility lines on another’s land; the easement giving its holder the right of access across a tract of land)
- Can be affirmative or negative.
- Most easements are affirmative: the right to do something on servient land.
- Negative easements: entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. (four categories – LASS)
- Light
- Air
- Support
- Stream water from an artificial flow
- A minority of states allow a negative easement for a scenic view.
- Negative easements can only be created expressly, by writing signed by the grantor. There is no natural or automatic right to a negative easement.
- Easement is either appurtenant to the land or it is held in gross.
- Easement appurtenant – “it takes two!”: when it benefits its holder in his physical use or enjoyment of his property.
- Requires 2 parcels of land:
- Dominant tenement: derives the benefit
- Servient tenement: suffers the burden of the easement.
- EX: A grants B a right of way across A’s land, so that B can more easily reach his land. B’s land is benefited by the easement. It is the dominant tenement. A’s land is serving B’s easement. It is the servient tenement. B has an easement appurtenant to B’s dominant tenement.
- Easement in gross: when it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. Servient land is burdened. There is no benefited or dominant tenement.
- EX: The right to place a billboard on another’s lot. The right to swim in another’s pond. The right to lay power lines on another’s land.