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Termination of Easements - Chapter 6 - Private Land Use Arrangements: Easements, Real Covenants and Equitable Servitudes - Second Edition

Author: Gerald Korngold
Page Count: 34
Published: October 2004
Media Desc: PDF from "Private Land Use Arrangements: Easements, Real Covenants and Equitable Servitudes -2nd Edition"
File Size: 162 KB

Originally from:

Private Land Use Arrangements: Easements, Real Covenants, and Equitable Servitudes - Second Edition - Hardcover

Private Land Use Arrangements: Easements, Real Covenants, and Equitable Servitudes - Second Edition - Electronic

Chapter 6 - Preview Page

§6.01 Theoretical Bases

   Easements may be extinguished pursuant to various doctrines. The courts note that forfeiture of easements is not favored, and an easement can be extinguished only in some mode recognized by the law.

   The remaining sections in this chapter explore the various termination devices. There are some common themes in the theories and doctrinal bases supporting them. First, several of the termination doctrines are justified based on the intent of the parties. The parties may expressly indicate that the easement is to terminate at a set point, and the law should give effect to their expression. This is reflected in termination by the terms of the agreement and by release. Also, the parties’ intent to end the easement might be implied. Thus, termination by completion of purpose and alteration of the dominant estate are based on an implied understanding that the easement is designed to serve only specific needs and should end when they no longer exist. Termination by abandonment6 and estoppel recognize that the parties can signal their intent to end the easement relationship through actions rather than words.

Table of Contents

Full Table of Contents from "Private Land Use Arrangements: Easements, Real Covenants and Equitable Servitudes - 2nd Edition"


1 Introduction

-1.01 Historical Background and Approach of This Treatise

-1.02 Uses of This Treatise

2 Introduction to Easements

-2.01 In General

-2.02 Affirmative and Negative Easements

-2.03 Appurtenant versus In Gross Easements

-2.04 Profits Ă  Prendre

-2.05 Current Applications

3 Creation of Easements

-3.01 Express Easements: Methods of Creation

-3.02 Language Necessary for Creation

-3.03 Sufficiency of Description

-3.04 Formal Requirements

-3.05 Easements Arising from Oral Grant or Permission

-3.06 Dedication

-3.07 Implied Easements

-3.08 Overview; First Restatement Test

-3.09 Theory: Intent and Public Policy

-3.10 Contrary Intent

-3.11 Easements by Necessity

-3.12 Severance

-3.13 Necessity

-3.14 Easements Based on Prior Use

-3.15 Quasi-Easement Theory

-3.16 Severance

-3.17 Necessity

-3.18 Apparent

-3.19 Continuous

-3.20 Implied Easements: Protective Strategies and Drafting Comments

-3.21 Easements Implied by Map or Boundary Reference

-3.22 Other Implied Easements

-3.23 Prescription

-3.24 Prescriptive Period

-3.25 Tacking

-3.26 Disabilities

-3.27 Nature of Adverse Acts

-3.28 Claim of Right

-3.29 Permissive

-3.30 Exclusivity

-3.31 Continuous

-3.32 Color of Title

-3.33 Interruption-Strategies to Prevent Prescription

-3.34 Prescription against Government and Charities

4 Scope and Protection of Easements

-4.01 Extent of Easements

-4.02 Express Easements

-4.03 Implied Easements

-4.04 Prescriptive Easements

-4.05 Retained Rights of the Servient Owner

-4.06 Interference by the Servient Owner

-4.07 New Uses: Proper versus Impermissible Uses

-4.08 Express Easements

-4.09 Implied Easements

-4.10 Prescriptive Easements

-4.11 Subdivision

-4.12 Use for Other Lands

-4.13 Location

-4.14 Maintenance and Alterations

-4.15 Remedies

-4.16 Injunctive Relief

-4.17 Damages

5 Succession and Transfer of Easements

-5.01 Enforcement against Purchaser of Servient Tenement-Movement by Operation of Law

-5.02 Notice Required

-5.03 Succession to Appurtenant Easements

-5.04 Transfer of the Dominant Estate

-5.05 Subdivision of the Dominant Estate

-5.06 Severance of Appurtenant Easements

-5.07 Transfer of Easements in Gross

-5.08 Traditional Rule against Transferability

-5.09 Commercial versus Noncommercial Easements

-5.10 Intention

-5.11 Divisibility

-5.12 Drafting Comments

6 Termination of Easements

-6.01 Theoretical Bases

-6.02 Terms of the Agreement; Drafting Comments

-6.03 Completion of Purpose

-6.04 Adverse Possession or Use

-6.05 Purchasers without Notice

-6.06 Overuse

-6.07 Alteration of Dominant Estate

-6.08 Release; Drafting Comments

-6.09 Abandonment

-6.10 Estoppel

-6.11 Merger

-6.12 Destruction of the Servient Estate

-6.13 Foreclosure

-6.14 Condemnation

-6.15 Tax Deed

-6.16 Marketable Title Acts

7 Licenses

-7.01 Definitions

-7.02 Licenses Distinguished from Other Interests

-7.03 Creation, Revocation, Termination, and Assignment

8 Introduction to Real Covenants and Equitable Servitudes

-8.01 The Nature of Covenants at Law and In Equity

-8.02 The Conflicting Policies: Freedom of Contract and Limiting Ties on Land

-8.03 Overlap with Other Interests

9 Elements of Covenants at Law and in Equity

-9.01 Overview

-9.02 Creation

-9.03 Express: Methods of Creation

-9.04 Express: Formalities

-9.05 Estoppel and Part Performance

-9.06 Implication; Implied Burdens

-9.07 Intent

-9.08 Intent That Covenant Run

-9.09 Persons Entitled to Enforce; Implied Benefits

-9.10 Touch and Concern

-9.11 Covenants against Competition

-9.12 Affirmative Covenants

-9.13 Drafting Comments

-9.14 Privity

-9.15 Enforcement in Gross

-9.16 Notice

10 Validity, Construction, Operation, and Enforcement of Covenants

-10.01 Validity

-10.02 Covenants Violating Public Policy

-10.03 Interaction with Zoning

-10.04 Construction and Operation-Rules and Maxims

-10.05 Building, Use, and Related Covenants

-10.06 Single Family Use; Group Homes; Age Restrictions

-10.07 Aesthetic and Architectural Controls

-10.08 Exercise of Power by Homeowners Governing Body

-10.09 Subdivision Assessments

-10.10 Restrictions on Competition

-10.11 Enforcement

11 Duration, Termination, Defenses, and Amendment of Covenants

-11.01 Duration-In General

-11.02 Termination and Defenses

-11.03 Release or Agreement

-11.04 Merger

-11.05 Waiver, Abandonment, and Estoppel

-11.06 Laches and Unclean Hands

-11.07 Changed Conditions

-11.08 Relative Hardship

-11.09 Foreclosure

-11.10 Tax Deed

-11.11 Condemnation

-11.12 Marketable Title Acts

-11.13 Amendment and Modification

Table of Cases and Statutes




Author Detail

Gerald Korngold Gerald Korngold is Professor of Law at New York Law School in New York City and a Visiting Fellow at the Lincoln Institute of Land Policy in Cambridge, Massachusetts. He is the former Dean of Case Western Reserve University School of Law.

Professor Korngold is an elected member of the American Law Institute (ALI) and the American College of Real Estate Lawyers. He served as an Advisor to the ALI's Restatement of Property (Third) - Servitudes. Professor Korngold is also the author of Cases and Text on Property (with French, Vander Velde, Casner & Leach); Real Estate Transactions: Cases and Materials on Land Transfer, Development and Finance (with P. Goldstein) and Property Stories (co-edited with A. Morriss).

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