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Real Property (Easement (Prescription (Continuous for the statutory period…
Real Property
Easement
Easements appurtenant
The servient estate is the “burdened” land, i.e. the owner of the land is burdened by the easement being on their land; and
The dominant estate is the “benefitted” land, i.e. the owner of the land is benefited by the easement. Easements appurtenant automatically pass when the servient and dominant estates are transferred.
Easements in gross: the right to use the land is held by an individual independent of any land ownership.
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Express: by grant is when the owner grants someone else an easement. An express easement by reservation is when the grantor conveys land to another, but “reserves” or retains the right to continued use of the land for a designated purpose. The grantor may only reserve an easement for themself, not a third party.
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Prior Use
Common grantor must have a certain use of the land that exists prior to the division of the single tract of land
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Termination of Easements
- Abandonment: must be a clear intent to permanently abandon the easement. Words or intent alone are insufficient to abandon an easement. Non-use of an easement alone is insufficient to abandon an easement. The holder must have intent and physical acts together in order to have a valid abandonment.
2. Estoppel: When a servient owner reasonably relies on an easement holder’s conduct indicating an intent to abandon the easement. BUT reliance on non-use alone is insufficient.
- For an Easement by Necessity, Necessity Ends: They expire upon the ending of the necessity giving rise to the easement.
4. Destruction of Servient EstateIf the servient estate is destroyed, the easement on the servient estate will also be destroyed.
- Release.This occurs if the easement holder gives the owner of the servient estate a written deed of release.
- Merger: Easements terminate automatically upon one person acquiring title to both the servient and dominant estates. Re-dividing the land later will not revive the easement.
- Prescription: The owner of the servient estate interferes with the easement in such a way that it that meets the required elements to obtain an easement by prescription.
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Recording Acts
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Notice
In a notice jurisdiction, a subsequent purchaser wins if they did not have notice of the prior purchaser at the time of the subsequent purchaser’s purchase. Notice can be actual or constructive.
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Constructive notice means purchaser 2 should have known. Properly filing the deed will give constructive notice so it is important to file the deed in notice jurisdictions to protect your interest in the property.
Race-Notice
The second purchaser only wins if they did not have notice at the time of conveyance AND they recorded before the first purchaser
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