Property II

Easements can be affirmative or negative:

1. Affirmative Easement

   Affirmative easements confer upon the holder the right to make some limited affirmative use of land possessed by another, such as crossing over it to gain access to an adjacent tract of land.

2. Negative Easement

   Negative easements limit another's use of his land, such as from obstructing light, air, or view, from blocking an artificial stream, or from removing a building's support.

   Five types of negative easements are tolerated:

   1. Flow of light or air
   2. Support of a building
   3. Flow of an artificial stream
   4. Views
   5. Conservative
      • Prevents all use forever

   A negative easement can go in perpetuity unless it's transformed into a restrictive covenant.

There are three types of easements based on how they are created:

• Express Easement
  • Easements are interests in land and thus generally subject to the statute of frauds.
  • An express easement can be created by grant or reservation.
    • An express easement by grant is created when the grantor executes and delivers to the grantee and instrument conveying the easement over the servient land.
    • An express easement by reservation is created when the grantor executes and delivers a deed conveying the servient land to a grantee, but he retains an easement over the servient land in himself.
• Implied Easement

  • Easements Implied from Subdivision Plats

    If a parcel is subdivided with a plat (map) showing the lots and streets, it is implied that an easement to use the streets is created if such an easement is forgotten from the deed.

  • Implied Easement of Necessity

    An implied easement of necessity arises when the owner of one parcel of land conveys part of the land, landlocks the parcel conveyed or the parcel retained, and fails to create an express easement for a right of way to the landlocked parcel.

  • Implied Easement Based Upon Pre-existing Use

    Law of what constitutes an implied easement based upon pre-existing use varies greatly between states, but generally five factors are considered:

    1. whether the claimant is the grantor or the grantee of the dominant tract;
    2. the extent of necessity of the easement to the claimant;
    3. whether reciprocal benefits accrue to both the grantor and grantee;
    4. the manner in which the land was used prior to conveyance; and
    5. whether the prior use was or might have been known to the parties to the present litigation.

    Bob's Ready to Wear.

• Prescriptive Easement

  Prescriptive easements have the same requirements as adverse possession, minus the requirement of exclusivity and instead of "possession," it is just "use."

  Adverse Possession

  The adverse possession doctrine shifts title of land from the true owner to an adverse possessor after the statutory period expires.

  For possession to ripen into title under adverse possession, most authorities hold that it must be:

  1. Actual Possession

     Actual possession is physically possessing the land as a true owner would. Mullis.

     Also known as constructive possession.

  2. Exclusive Possession
  3. Continuous Possession

     Continuous possession requires possessing the land as a true owner would without significant interruption.

     Successive possessors can "tack" their periods of possession. The "privity" required to tack their ownerships together requires the new owners to be the successors of the first.

  4. Hostile Possession

     Hostile possession is possession under a claim of right.

     Can be approached objectively or subjectively.

     • Objective Test
       • The objective approach focuses upon how an objective observer would evaluate whether the adverse possessor is exercising rights that are inconsistent with the rights held by the true owner.
     • Subjective tests:
       • Good Faith
         • Allows an adverse possessor who believes they have a bona fide right to the land to gain rights.
       • Intent to Claim
         • Allows an adverse possessor to acquire title if he had intent to claim land beyond his own.
  5. Open and Notorious Possession

     Open and notorious possession means it is visible and obvious to put a reasonable true owner on notice of an adverse claim.

  all for the full duration of the applicable statute of limitations.