29.1 Easements, Profits & Licenses

29.1 Easements, Profits & Licenses

NCBE's second Real Property area covers rights in land: easements, profits, and licenses; real covenants and equitable servitudes; fixtures; and zoning. Start by identifying which interest the facts describe, because each has its own rules for creation, transfer, and termination.

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The Spectrum of Servitudes

                                  ┌────────────────────────────────┐
                                  │           Servitudes           │
                                  └───────────────┬────────────────┘
                                                  │
         ┌────────────────────────┬───────────────┴────────────────┬────────────────────────┐
         ▼                        ▼                                ▼                        ▼
┌─────────────────┐      ┌─────────────────┐              ┌─────────────────┐      ┌─────────────────┐
│    Easements    │      │     Profits     │              │    Licenses     │      │   Covenants &   │
│ (Right to use   │      │ (Right to sever │              │ (Revocable      │      │   Servitudes    │
│  another's land)│      │  resources)     │              │  privilege)     │      │ (Use restriction│
└─────────────────┘      └─────────────────┘              └─────────────────┘      │  or obligation) │
                                                                                   └────────┬────────┘
                                                                                            │
                                                                           ┌────────────────┴────────────────┐
                                                                           ▼                                 ▼
                                                                ┌──────────────────────┐          ┌──────────────────────┐
                                                                │    Real Covenants    │          │ Equitable Servitudes │
                                                                │  (Damages at Law)    │          │ (Injunction / Equity)│
                                                                └──────────────────────┘          └──────────────────────┘

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Easements: Classification and Distinctions

An easement is a non-possessory property interest that confers upon its holder a legally enforceable right to enter and use land possessed by another for a specified, limited purpose. The holder possesses a property interest, not merely a contractual right.

1. Easement Appurtenant vs. Easement in Gross

The fundamental classification of an easement turns on whether it is tied to a specific parcel of land or belongs to a holder independently of land ownership.

                      EASEMENT APPURTENANT: Benefits Land

   ┌──────────────────────────────┐              ┌──────────────────────────────┐
   │       Dominant Tenement      │              │       Servient Tenement      │
   │      (Holds the Benefit)     ├─(Driveway)──►│       (Bears the Burden)     │
   │                              │              │                              │
   │  Benefit runs automatically  │              │  Burden runs to successors   │
   │  with transfer of parcel     │              │  with actual/record/inq. note│
   └──────────────────────────────┘              └──────────────────────────────┘


                      EASEMENT IN GROSS: Benefits Person / Entity

   ┌──────────────────────────────┐              ┌──────────────────────────────┐
   │       Benefited Holder       │              │       Servient Tenement      │
   │   (Commercial Utility Co.)   ├─(Power Line)►│       (Bears the Burden)     │
   │                              │              │                              │
   │  No dominant parcel exists;  │              │  Burden runs to successors   │
   │  commercial = transferable   │              │  with actual/record/inq. note│
   └──────────────────────────────┘              └──────────────────────────────┘

A. Easement Appurtenant

• Definition: An easement that directly benefits the holder in the physical use, occupancy, or economic enjoyment of their own adjoining or nearby parcel of land. It requires two distinct parcels of land:
  1. Dominant Tenement: The parcel that derives the benefit of the easement.
  2. Servient Tenement: The parcel that bears the physical burden or right of entry.
• Transferability and Running with the Land:
  • The Benefit: Transfers automatically with the transfer of the dominant tenement, regardless of whether the easement is expressly mentioned or referenced in the deed of conveyance.
  • The Burden: Runs automatically with the servient tenement to all subsequent owners and possessors, unless the transferee is a bona fide purchaser (BFP) who took title for value without actual, inquiry, or record notice of the easement.

B. Easement in Gross

• Definition: An easement that confers upon its holder a personal or economic benefit that is independent of, and unconnected to, the holder's ownership or use of any specific parcel of real estate. There is only a servient tenement; there is no dominant tenement.
• Transferability:
  • Commercial Easements in Gross: Easements held for a commercial purpose (e.g., utility power lines, municipal water mains, railroad rights-of-way, commercial billboard placement) are freely assignable and transferable.
  • Personal Easements in Gross: Easements granted purely for personal enjoyment, recreation, or pleasure (e.g., permission granted to an individual friend to fish, hunt, or hike on a tract) are strictly personal to the holder and are non-transferable unless the parties expressly provide otherwise.

C. Affirmative vs. Negative Easements

• Affirmative Easement: Entitles the holder to physically enter and perform an affirmative act upon the servient land (e.g., laying utility pipes, walking across a footpath, driving over a private road).
• Negative Easement: Entitles the holder to compel the servient owner to refrain from engaging in an otherwise lawful physical activity on their own land. Common law strictly restricted negative easements to four categories (Mnemonic: LASS):
  • L — Light: Restricting obstruction of direct sunlight.
  • A — Air: Restricting obstruction of air flow or currents.
  • S — Support: Restricting excavation that removes lateral or subjacent support.
  • S — Stream water: Restricting obstruction or artificial diversion of artificial water flow from an artificial stream.
  • Modern Addition: Scenic view or solar access / conservation easements (typically established by express statutory authorization).
  • Rule: American courts generally refuse to recognize negative easements created by prescription or implication—for example, long enjoyment of light and air over a neighbor's land creates no easement—so negative easements are usually created by an express, signed grant. Modern courts often treat such restrictions as restrictive covenants.

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Creation of Easements

Easements may be created in five ways. The mnemonic PING (Prescription, Implication, Necessity, Grant) covers the first four; estoppel is the fifth:

┌────────────────────────────────────────────────────────────────────────────┐
│                       METHODS OF EASEMENT CREATION                         │
├─────────────────────────────────────┬──────────────────────────────────────┤
│  1. Express Grant or Reservation    │ • Written deed satisfying SoF        │
│                                     │ • Expressly identifies parcels       │
├─────────────────────────────────────┼──────────────────────────────────────┤
│  2. Implication (Quasi-Easement)    │ • Common ownership prior to split    │
│                                     │ • Apparent, continuous prior use     │
│                                     │ • Reasonable necessity               │
├─────────────────────────────────────┼──────────────────────────────────────┤
│  3. Implication by Strict Necessity │ • Common ownership prior to split    │
│                                     │ • Severance landlocks one parcel     │
│                                     │ • Strict necessity required          │
├─────────────────────────────────────┼──────────────────────────────────────┤
│  4. Prescription                    │ • Open and notorious                 │
│                                     │ • Continuous for statutory period    │
│                                     │ • Hostile (without permission)       │
├─────────────────────────────────────┼──────────────────────────────────────┤
│  5. Estoppel                        │ • Good-faith reliance on permission  │
│                                     │ • Substantial money/labor expended   │
└─────────────────────────────────────┴──────────────────────────────────────┘

1. Express Grant or Express Reservation

• Express Grant: Created by a written deed or granting instrument executed by the servient owner. Because an easement is an interest in land, it must satisfy the Statute of Frauds: it must be in a signed writing identifying the parties, describing the servient land with reasonable certainty, and manifesting an unequivocal intent to create a servitude.
• Express Reservation: Arises when a grantor conveys a parcel of land to a grantee, but expressly reserves in the granting deed the right to retain an easement over the conveyed parcel for the benefit of grantor's retained land.
• Common Law Rule vs. Modern Trend on Third Parties: At common law, a grantor could NOT reserve an easement in favor of a third party (a stranger to the deed). Many modern courts and the Restatement (Third) of Property: Servitudes allow such reservations to carry out the grantor's clear intent (Willard v. First Church of Christ, Scientist, Cal. 1972), although some states still follow the common-law rule.

2. Implication from Prior Existing Use (Quasi-Easement)

An implied easement from prior existing use arises when a single landowner uses one part of their property to benefit another part, and then severs the unified parcel. The claimant must establish three elements:

1. Common Ownership: Unity of ownership of both the benefited and burdened parcels prior to severance.
2. Apparent and Continuous Prior Use: Prior to the division of title, the owner used one part of the unified land to benefit the other part in a manner that was continuous, visible, or readily discoverable upon reasonable inspection (a "quasi-easement").
3. Reasonable Necessity: At the moment of severance, the continued use is reasonably necessary for the fair and convenient enjoyment of the quasi-dominant parcel (e.g., access to a public sewer line or connecting driveway, even if an alternative could be constructed at substantial expense).

3. Implication by Strict Necessity (Landlocked Parcels)

An easement by necessity arises when a grantor conveys a portion of their land, leaving either the conveyed parcel or the grantor's retained parcel without any legal access to a public road.

1. Common Ownership Severance: Unity of ownership immediately preceding the severance.
2. Strict Necessity at Severance: The severance itself created the absolute landlocked condition. The parcel must have no access to a public roadway except across the servient estate (or land of strangers).
3. Duration: An easement by necessity endures only so long as the strict necessity continues. If the municipality opens a new public street or highway connecting to the landlocked parcel, the easement by necessity automatically extinguishes by operation of law.

4. Prescription (Prescriptive Easement)

An easement by prescription is acquired in a manner analogous to acquiring title by adverse possession, but grants a right of use rather than fee ownership.

• Elements: Use must be:
  1. Open and Notorious: Discoverable by a diligent landowner upon reasonable inspection;
  2. Continuous and Uninterrupted: For the applicable statutory adverse possession period (typically 10 to 20 years at common law);
  3. Hostile and Adverse: Exercised without the owner's permission or consent under an objective claim of right.
• Key Distinction from Adverse Possession: Exclusivity is NOT required. The claimant does not need to exclude the true owner or the public; they merely need to assert an independent right of use.
• Permission Defeats Prescription: If the servient owner grants permission, the use is a revocable license, defeating the hostility element and preventing a prescriptive easement from ever maturing.

5. Easement by Estoppel

An easement by estoppel arises when a landowner grants informal permission (a license) to another to use the land, and the licensee, in reasonable and foreseeable reliance on the continued use, makes substantial expenditures of money, labor, or improvements. The landowner is equitably estopped from revoking the license, transforming it into an irrevocable easement for so long as the reliance investment endures.

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Scope and Overburdening

• Interpreting Scope: The scope of an express easement is determined by the objective intent of the parties as manifested in the granting instrument. In the absence of specific language, an easement is presumed to encompass reasonable present and future uses that were reasonably foreseeable at the time of creation to serve the normal development of the dominant parcel.
• The Rule Against Surcharging (Overburdening): An easement appurtenant exists exclusively for the benefit of the dominant tenement. The dominant owner cannot unilaterally expand the scope of the easement to serve an adjoining, newly acquired, or non-dominant parcel, even if the additional burden on the servient estate is negligible.
• Remedy for Overburdening: The servient owner is entitled to an injunction prohibiting the unauthorized use of the easement for the non-dominant parcel. Critical MBE Rule: Overburdening or surcharging an easement does NOT extinguish or terminate the easement; the remedy is an injunction against the excess use and damages, not forfeiture.
• Duty of Maintenance and Repair: The dominant owner has the right to maintain and repair the easement and generally bears that cost. The servient owner has no duty to maintain the easement unless it agreed to do so. If both dominant and servient owners use the easement, repair costs are apportioned equitably between them based on relative use.

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Termination of Easements: The END CRAMP Framework

Once created, an easement persists until extinguished through a recognized legal doctrine. On the MBE, apply the END CRAMP mnemonic:

┌────────────────────────────────────────────────────────────────────────────┐
│                     TERMINATION OF EASEMENTS (END CRAMP)                   │
├─────────────────────────────────────┬──────────────────────────────────────┤
│  E — Estoppel                       │ Servient owner materially alters     │
│                                     │ position in reasonable reliance      │
├─────────────────────────────────────┼──────────────────────────────────────┤
│  N — Necessity Ends                 │ Easement by necessity expires when   │
│                                     │ alternative public access opens      │
├─────────────────────────────────────┼──────────────────────────────────────┤
│  D — Destruction                    │ Involuntary physical destruction of  │
│                                     │ servient structure terminates it     │
├─────────────────────────────────────┼──────────────────────────────────────┤
│  C — Condemnation                   │ Eminent domain extinguishes easement │
│                                     │ with just compensation to holder     │
├─────────────────────────────────────┼──────────────────────────────────────┤
│  R — Release                        │ Formal written deed of release       │
│                                     │ complying with Statute of Frauds     │
├─────────────────────────────────────┼──────────────────────────────────────┤
│  A — Abandonment                    │ Physical act showing intent to       │
│                                     │ abandon; mere non-use is INSUFFICIENT│
├─────────────────────────────────────┼──────────────────────────────────────┤
│  M — Merger                         │ Complete unity of title in fee simple│
│                                     │ of dominant and servient estates     │
├─────────────────────────────────────┼──────────────────────────────────────┤
│  P — Prescription                   │ Servient owner blocks access openly, │
│                                     │ continuously, and hostilely          │
└─────────────────────────────────────┴──────────────────────────────────────┘

Detailed Analysis of Termination Doctrines

1. Estoppel: The easement holder gives oral or written assurances that the easement will no longer be used, and the servient owner reasonably and foreseeably relies on those representations by materially changing their position (e.g., constructing an expensive permanent building across the right-of-way). Equity estops the holder from reasserting the easement.
2. Necessity Ends: An easement created strictly by necessity automatically terminates the instant the necessity ceases to exist (e.g., when a public road is constructed providing direct highway access to the previously landlocked parcel).
3. Destruction: Involuntary destruction of the servient building or land (e.g., total structural collapse by fire or natural disaster) terminates an easement in that structure. However, voluntary destruction by the servient owner does not extinguish the easement.
4. Condemnation: The government's exercise of eminent domain to take the servient estate for a public purpose terminates the easement. The easement holder is entitled to just compensation for the fair market value of their property interest taken.
5. Release: The easement holder executes a written deed of release satisfying the Statute of Frauds, conveying the easement back to the servient owner.
6. Abandonment: The Most Tested MBE Trap. To legally abandon an easement, the holder must demonstrate an affirmative physical act manifesting an unequivocal intent to permanently relinquish the easement (e.g., paving an alternative road and constructing a solid brick wall permanently sealing off the easement entrance).

   MBE Tip — Mere Non-Use is NEVER Abandonment: Mere non-use of an easement, regardless of how many decades or generations it persists, does NOT constitute legal abandonment. Even oral statements expressing an intent never to use the easement again do not extinguish it unless accompanied by an affirmative physical act of abandonment or detrimental reliance supporting estoppel.

7. Merger (Unity of Ownership): An easement terminates automatically when the dominant tenement and the servient tenement come under the ownership of the same individual in the same quantum of estate (e.g., both parcels acquired in fee simple absolute). Once extinguished by merger, the easement is permanently extinguished; if the combined parcel is subsequently re-divided into two tracts, the easement does not automatically revive.
8. Prescription: The servient owner physically blocks or prevents the easement holder from using the right-of-way in an open, notorious, continuous, and hostile manner for the statutory prescriptive period (e.g., erecting a locked security gate and successfully excluding the holder for 15 years).

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Profits à Prendre and Licenses

1. Profit à Prendre (Profit)

• Definition: A non-possessory interest in land that entitles the holder to enter the servient estate and sever and remove natural resources or products of the soil (e.g., timber, gravel, sand, oil, gas, minerals, wild game, or fish).
• Rules Governing Profits: A profit is governed by the exact same legal principles applicable to easements. It requires a writing satisfying the Statute of Frauds, can be held appurtenant or in gross, and terminates under the END CRAMP framework. When an exclusive profit in gross is divided among several holders, they must exercise it together as "one stock" so that the servient land is not overburdened.

2. Licenses

• Definition: A revocable personal privilege to enter upon another's land for a specific, defined purpose without acquiring any possessory or property estate (e.g., a ticket to a baseball game, a seat at a cinema, a customer browsing a store, or an informal oral permission to park a vehicle on a neighbor's driveway).
• Key Characteristics:
  • Freely Revocable: Terminable at the unfettered will of the licensor at any time, without advance notice or cause.
  • No Statute of Frauds: Because a license is a personal privilege and not an interest in real property, it requires no writing and may be granted orally.
  • Automatic Termination: Terminates automatically upon the death of either party or the conveyance of the servient land by the licensor.
• The Irrevocable License (License Coupled with an Interest or Estoppel): A license becomes irrevocable when the licensee makes substantial, reasonable financial expenditures or improvements in justifiable reliance on the licensor's oral representations. In such cases, equity treats the license as an easement by estoppel, which remains irrevocable for so long as necessary for the licensee to realize the value of their investment.

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More on Easements

Implied Easements: Grants vs. Reservations

• Grantees are favored: Courts imply an easement in favor of a grantee more readily than one reserved for the grantor, because the grantor wrote the deed and could have reserved the easement expressly. Some courts require strict necessity before implying a reservation.
• Easements implied from a plat: A buyer of a lot sold by reference to a recorded subdivision map acquires an implied easement to use the streets, parks, or other common areas shown on the map. Courts differ on whether the easement covers every feature on the map or only those that benefit the buyer's lot.
• Necessity is measured at severance: An easement by necessity requires that the parcels were commonly owned and that the necessity existed when they were divided. A later loss of access does not create one. The servient owner may generally choose a reasonable location for the route.

Prescriptive Easements in More Detail

• Permission: Use that begins with permission does not become adverse until the user clearly repudiates the permission and the owner learns of it.
• Tacking and disability: Successive users in privity may add their periods of use together, and disability rules generally apply as they do for adverse possession.
• Interruption: An owner who effectively interrupts the use, such as by blocking the path, restarts the prescriptive period. Courts divide on whether protests or letters alone are enough.

Scope, Relocation, and Division

• Changes in use: The holder may change the manner, frequency, or intensity of use to keep pace with normal development of the dominant parcel, such as replacing wagons with cars, but may not unreasonably increase the burden.
• Servient owner's use: The servient owner may keep using the easement area in any way that does not unreasonably interfere with the easement.
• Relocation: Traditionally, neither party may relocate a defined easement without the other's consent. The Restatement (Third) of Property: Servitudes and a growing number of courts allow the servient owner to relocate it at its own expense if the change does not significantly reduce the easement's usefulness, increase the burden on the dominant owner, or frustrate its purpose (M.P.M. Builders, LLC v. Dwyer, Mass. 2004).
• Subdivision of the dominant parcel: When the dominant parcel is divided, each new lot generally shares the easement unless the added use would unreasonably burden the servient land.

Easements and the Recording Acts

• Express easements: An express easement should be recorded. A later purchaser of the servient land who pays value without notice may take free of an unrecorded express easement.
• Implied and prescriptive easements: These easements are never recorded, but visible signs of use, such as a worn driveway or utility poles, often give later buyers inquiry notice.

Licenses in More Detail

• Tickets: A ticket to a theater or sporting event is ordinarily a revocable license. A patron who is wrongfully ejected may sue for breach of contract but not for trespass (Marrone v. Washington Jockey Club, 1913).
• License coupled with an interest: A license to enter land in order to use or remove property the licensee owns there—such as timber or chattels the licensee has bought—cannot be revoked while the interest lasts.