Easements & Licenses — Real Property

Olga owns a Franklin farm crossed by a gravel lane she has always driven to reach the back field from the road. She sells the back field to Ben. The deed says nothing at all about the lane. Ben starts driving it the next morning. Can Olga stop him?

No. Olga once owned the whole tract, she visibly used that lane to serve the back field, and Ben now needs it to reach his land. A court will imply an easement from prior use, and Ben keeps driving. Nobody wrote anything down and Ben still wins. This topic is starred, which means no statute is coming for the easement rules. You recall them cold, and you spot the issue from the facts alone.

Here is the route, in five parts. What an easement actually is, and the flavors it comes in. Then the five roads into one. Then scope, which is how far it stretches. Then transfer, which decides whether it survives a sale. And finally termination, because a servient owner's favorite question is how do I get rid of this.

Two words first, because every question is built on them. The servient estate is burdened. It is the land you get to use, or that must hold still. The dominant estate is benefited, when there is one. Servient burdened, dominant benefited. Get those backwards and nothing else lands.

An easement is a nonpossessory right to use land possessed by someone else. The holder uses it for a limited purpose but does not own or possess it, and the servient owner may still do anything that does not interfere. And because it is an interest in land and not a favor, three things follow. It normally must be in writing. It cannot be yanked back at whim. And it can travel to future owners.

Two splits organize the flavors. First, direction. An affirmative easement lets the holder go onto the servient land and do something. Cross it, park on it, run a line over it. That is the overwhelming majority. A negative easement instead forbids the servient owner from doing something on their own land, like building in a way that blocks your light.

Courts distrust those, because they quietly freeze what a landowner may do, so they exist only in a short closed list. Light, air, support, and the flow of an artificial stream, with modern add-ons for solar and conservation easements. And here is the rule that matters. A negative easement can be created only expressly, by signed writing. Never by prescription. Never by implication.

Second split, who benefits. An easement appurtenant benefits the holder in the use of a particular parcel, so it needs two, dominant and servient. A right of way letting Lot A reach the road across Lot B belongs to Lot A. An easement in gross benefits a person or company personally, tied to no land. A utility's cables across your yard, or a right to swim in a private lake.

Why care? Appurtenant easements pass automatically with the land they benefit. In-gross easements are personal and may not transfer at all. And when a document is ambiguous, courts lean appurtenant, which keeps titles marketable.

Now the line that decides revocability. A license is mere permission to enter or use land. A personal privilege, not an interest in land. A movie ticket. A dinner guest. So it can be created orally, it is revocable at will, and it is personal to the licensee. An easement is the opposite on all three counts.

And here is the trap hanging on that line. When someone tries to create an easement but botches the formality, most often an oral easement that flunks the Statute of Frauds, the failed easement becomes a license. An oral right of way gives only revocable permission, unless estoppel rescues it.

Part two. Creation, and there are five roads. Express grant or reservation. Implication from prior use. Implication by necessity. Prescription. And estoppel. Work the facts in that order.

The cleanest are written. In an express grant the servient owner signs a document giving the easement away. In an express reservation, an owner sells part of the land but keeps an easement over the part sold. Either way it needs a writing, signed by the servient owner. One wrinkle. Traditionally a grantor could reserve an easement only for themselves, never for a stranger to the deed. The modern trend enforces it when the intent is clear.

Road two, prior use. Because you cannot have an easement on your own land, the pre-existing arrangement is a quasi-easement, and it becomes real only at severance. Four elements. Common ownership then severance. An existing use before it. The use was apparent, visible or discoverable on inspection, a worn path, a drainpipe, poles. And it is reasonably necessary, not strictly necessary.

Which is Olga's lane exactly. Visible, already serving the back field, and Ben needs it. That is an implied grant, and courts allow those readily, because a seller should not sell land the buyer cannot use. Now flip it. Suppose Olga had sold the front parcel and kept the landlocked back field. Now she claims an implied reservation over land she just sold, and many courts scrutinize that far harder, because she drafted the deed.

Road three, necessity, for the landlocked parcel. It arises when an owner divides land leaving one piece with no legal access to a public road. No prior use needed. The necessity must be strict, truly cut off rather than merely inconvenienced, and must exist at severance. And the favorite exam point. It lasts only as long as the necessity. The day a new public road reaches the parcel, that easement ends. Compare prior use, which survives.

Road four, prescription, the use-based cousin of adverse possession. Instead of possessing land long enough to own it, you use it long enough to keep using it. Open and notorious. Continuous for the statutory period. Hostile, meaning without permission and under a claim of right. And actual use, with tacking between successive users in privity. Exclusivity is not required, because a right of way can be shared.

The touchstone is that the use was unpermitted. If the owner ever gave permission, the use is not adverse and no prescriptive easement forms. Permission is the servient owner's complete defense. And negative easements can never be gained this way. If a question hands you a period, use its exact number. The Franklin Real Property Act, § 40, gives 15 years, and says permission at any time before the period runs defeats the claim.

Road five, estoppel, running through reliance. If the licensor lets the licensee spend real money or labor in reasonable reliance, and knew it was happening, the license becomes irrevocable. An easement by estoppel, lasting as long as needed to protect the investment. So a formality failure is not always fatal. The oral right of way that collapsed into a license can harden back into an easement once someone builds on it.

Part three. Scope. The governing principle is intent. For an express easement the words control, read in light of the purpose. Where the document is silent, the holder may use it in any way reasonably necessary and convenient for that purpose. The use grows with normal, foreseeable development of the dominant estate. An easement for access is not frozen at horse-and-buggy levels. That is the Restatement (Third), at § 4.1.

What the holder may not do is change the easement's character or pile on a burden nobody contemplated. Two kinds of misuse. Intensifying use until it unreasonably burdens the servient land. And the heavily tested one, so try it. Columbia Cabins holds a right of way across Devi's land to reach Lot 1, its dominant estate. Columbia buys the adjoining Lot 2 and starts sending Lot 2's guests over the same right of way. Devi's land feels no extra wear. Misuse?

Yes. An appurtenant easement may serve only its dominant estate, not other parcels the holder happens to acquire. The easement simply does not belong to Lot 2. And note the remedy. Devi can enjoin the Lot 2 traffic, but the easement is not forfeited. Columbia keeps its right of way for Lot 1. Misuse stops the wrongful use. It does not destroy the right.

Three quick scope rules. Repairs. The holder has the right and the duty to maintain the easement and may enter to do it. The servient owner has no duty unless they agreed. Subdivision. Split the dominant estate and each lot may generally use an appurtenant access easement, unless the added use unreasonably burdens the servient land. And apportionment. An exclusive easement in gross is divisible. A nonexclusive one follows the one-stock rule.

Part four. Transfer. The benefit of an appurtenant easement runs automatically with the dominant estate. Sell the benefited parcel and the buyer takes it even if the deed never mentions it, and the seller cannot keep the easement while selling the land. The burden runs to later owners of the servient estate, but only if they take with notice.

Notice comes in three forms. Actual, they knew. Record, it was in the chain of title. And inquiry, something visible on the ground that would make a reasonable buyer ask. A worn path. Utility poles. A culvert. Notice that this is the same fact that made Olga's use apparent for prior use. Visibility does double duty in this topic.

So test it. Priya buys a house in Olympia. Unknown to her, a neighbor holds an old unrecorded easement to cross the backyard. Nothing on the ground hints at it and it is nowhere in the records. Is Priya bound? No. A purchaser for value without notice takes free of it. Now change one fact. A well-worn footpath crosses the yard.

Now she is bound. That visible use is inquiry notice, she is charged with asking, and she takes the house subject to the easement. The Franklin Recording Act, § 12, says it plainly. An unrecorded interest is void against a subsequent purchaser for value without notice, and a purchaser has notice of what a reasonable inspection would reveal.

In gross is different, attaching to no land. A commercial easement in gross, serving an economic enterprise like a utility's power line, is freely transferable. A personal one, a recreational right to fish a private pond, usually is not. And a license is personal and not assignable at all.

Part five. Termination, and you want this cold. By its own terms. Merger, when one person owns both estates. Release, in writing. Abandonment. Estoppel. Prescription. End of necessity. Condemnation. And destruction of the servient structure without the holder's fault.

Three of those hide traps, and the first is the biggest. So try it. A commercial parcel holds a recorded easement over a service alley. For twenty-five years the holder has never once used it, because a separate street entrance serves the store fine. The servient owner wants to build over it and says a quarter-century of nonuse means the easement is gone. Is he right?

No. Mere nonuse never abandons an easement, however many years pass. Abandonment needs an overt act plus intent to give it up forever. Building a permanent structure across your own right of way. Tearing out the gate and telling the owner you are done. Twenty-five idle years, by themselves, accomplish nothing.

Trap two, merger. It extinguishes the easement the instant one person owns both estates, and it does not spring back when the parcels separate again. A brand new easement has to be created. Trap three. End of necessity reaches only easements by necessity. Express easements and prior-use easements survive.

Licenses end far more easily. Revocable at will. They also end on the death of either party, and on any attempt to transfer. And on sale of the servient land, because the new owner gave no permission. Even a license backed by a contract is revocable. Revoking may breach the contract and cost damages, but it still ends the license.

Two licenses cannot be revoked at will. First, a license coupled with an interest, where the licensee owns something on the land and needs access to it. Franklin Salvage buys the scrap metal piled in Omar's yard and gets permission to haul it away. Omar cannot revoke before Franklin has a fair chance to collect its own metal. Second, the license made irrevocable by estoppel.

A word on authorities, because this episode named no cases, and that was deliberate. This is classic common law refreshed by the Restatement (Third), and because the topic is starred, no statute is coming for the easement rules themselves. A recording act or a prescriptive period may be handed to you to apply, and if it is, use its exact terms. Everything else has to be in your head.

If you keep only three things, keep these. Servient burdened, dominant benefited, because every question is built on that vocabulary. Reasonable necessity for prior use against strict necessity for necessity, and only the necessity easement dies when the need does. And mere nonuse is never abandonment.

Now the traps. One. Mere nonuse never abandons an easement. Hunt for an affirmative act plus intent. Two. A negative easement can be created only expressly, never by prescription or implication. Three. Do not swap the necessity standards. Necessity needs strict necessity and dies with the necessity. Prior use needs only reasonable necessity and survives.

Four. Any permission from the owner is fatal to a prescriptive claim. Five. An appurtenant easement cannot be stretched to serve a non-dominant parcel, even when the servient land feels no added burden at all. Six. A buyer of the servient estate is bound only with notice, but a visible easement supplies inquiry notice, so look at the ground and not just the records.

And seven. Merger extinguishes an easement permanently. It does not revive when the parcels split again. One more worth carrying alongside those. An oral easement is not an easement. It is a revocable license, unless reliance triggers estoppel.

Time for the quick check. This one comes straight from the BARGO question bank.

The owner of a dominant estate, which enjoys an easement to cross the neighboring servient estate, buys that servient estate outright, so she now owns both parcels together. A few years later she sells the former servient parcel to a new buyer, and the deed says nothing about any easement. She now asserts that she still holds her original easement to cross the parcel she just sold, and demands the buyer keep the crossing open.

Does she still hold it? Option one. Yes, because the easement was merely suspended while she owned both parcels. Option two. No, because merger extinguished the easement, and it does not revive on resale. Option three. No, but only because she failed to expressly reserve the easement when she sold. Pause here if you want a moment.

The answer is option two. When one person comes to own both estates, the easement is extinguished by merger, because you cannot hold an easement in your own land. And it does not spring back to life when the parcels separate again. A brand new easement would have to be created. Option one is the trap. Merger extinguishes outright, it does not suspend. Option three reaches the right result for the wrong reason. The easement was already dead, so there was nothing left to reserve.

If option one felt safe, that is the instinct merger is built to defeat. There are thirty-plus more questions on this topic alone.

Five things to take away. One. Servient burdened, dominant benefited, and an ambiguous easement is read as appurtenant. Two. Five roads in. Express, prior use, necessity, prescription, estoppel. And a botched easement collapses into a revocable license unless reliance saves it. Three. Scope follows purpose and foreseeable development, but an appurtenant easement may never serve another parcel.

Four. The benefit runs automatically with the dominant land. The burden runs only against a buyer with notice, and a visible use is notice. Five. Learn the termination list, and remember its traps. Nonuse is not abandonment, merger is permanent, and only necessity easements die with the necessity.

Which brings us back to Olga's lane. Nobody wrote a word about it, and Ben drives it anyway, because the law implies what the parties plainly assumed. Look at the ground before you look at the deed. Next time, Covenants and Servitudes.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.