Learning Outcomes
After reading this article, you will be able to identify, define, and distinguish easements, profits, and licenses in real property law. You will understand how these rights are created, transferred, and terminated, and be able to apply the relevant legal rules to MBE-style questions involving use rights over land, including key differences between easements appurtenant, easements in gross, profits, and licenses.
MBE Syllabus
For MBE, you are required to understand the principles governing nonpossessory rights in real property. This article focuses on:
- The definition and types of easements, including easement appurtenant and easement in gross.
- Methods of creating easements: express, implication, necessity, and prescription.
- The scope, transfer, and termination of easements.
- The nature and creation of profits and how they differ from easements.
- The definition, characteristics, and revocability of licenses.
- Distinguishing easements, profits, and licenses in exam scenarios.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is a key distinction between an easement and a license?
- An easement is always revocable at will.
- A license is an interest in land.
- An easement is generally not revocable, while a license is.
- A license is transferable to successors in title.
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A written deed grants "to B and her heirs the right to cross A's land to reach the public road." What type of right is most likely created?
- Easement appurtenant
- Easement in gross
- Profit
- License
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Which of the following will NOT terminate an easement?
- Written release by the easement holder
- Complete consolidation of ownership of dominant and servient estates
- Mere nonuse for 5 years
- Express condition in the grant that is satisfied
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A landowner orally permits a neighbor to fish in his pond. The neighbor spends $5,000 building a dock in reliance. What is the neighbor's best argument for continued use?
- Easement by prescription
- Easement by implication
- Irrevocable license by estoppel
- Profit appurtenant
Introduction
Nonpossessory rights in real property allow someone to use land owned by another. The three main types are easements, profits, and licenses. These rights are frequently tested on the MBE, especially in questions requiring you to distinguish their characteristics, methods of creation, and termination.
Key Term: Easement A nonpossessory right to use another's land for a specific purpose, such as access or utility lines.
Types of Easements
There are two principal types of easements:
- Easement appurtenant: Benefits a particular parcel of land (the dominant estate) and runs with that land.
- Easement in gross: Benefits a person or entity, not a parcel of land, and does not require a dominant estate.
Key Term: Easement appurtenant An easement that benefits a specific parcel of land (dominant estate) and passes automatically to future owners of that land.
Key Term: Easement in gross An easement that benefits a person or entity rather than a parcel of land; it does not attach to land and may or may not be transferable.
Creation of Easements
Easements can be created in several ways:
- Express grant or reservation: A written instrument (usually a deed) that clearly describes the easement.
- Implication: Arises when land is divided and a use existed prior to severance that is reasonably necessary for enjoyment of the dominant parcel.
- Necessity: Created when a parcel is landlocked and access is necessary; requires common ownership and strict necessity at severance.
- Prescription: Acquired by open, notorious, adverse, and continuous use for the statutory period.
Key Term: Easement by prescription An easement acquired through continuous, open, and adverse use of another's land for the statutory period.
Scope and Transfer of Easements
The scope of an easement is determined by the terms of its creation or, for implied or prescriptive easements, by the historical use. Easements appurtenant automatically transfer with the dominant estate, while easements in gross are transferable only if they are commercial in nature.
Termination of Easements
Easements may be terminated by:
- Written release by the holder.
- Merger (when one person acquires both dominant and servient estates).
- Express condition in the grant.
- Abandonment (physical act showing intent to relinquish).
- Prescription (servient owner blocks use for the statutory period).
- Destruction of the servient estate (if not due to the easement holder).
- Necessity easements end when necessity ceases.
Key Term: Merger (of easement) Termination of an easement when ownership of both the dominant and servient estates is united in one person.
Profits
A profit is the right to enter another's land and remove natural resources (e.g., minerals, timber, fish).
Key Term: Profit A nonpossessory right to enter another's land and take part of the land or its resources.
Profits may be appurtenant (tied to land) or in gross (personal). The rules for creation, transfer, and termination are similar to those for easements, but profits are more likely to be extinguished by overuse (surcharge).
Licenses
A license is a revocable privilege to use another's land for a specific purpose, such as attending a sporting event or entering a shop.
Key Term: License A personal, revocable privilege to use another's land that does not create an interest in land.
Licenses are not interests in land, are not transferable, and may be revoked at any time unless coupled with an interest or made irrevocable by estoppel (where the licensee has relied substantially).
Worked Example 1.1
A grants B a written right to cross A's land to reach B's home. B sells her home to C. C uses the path. A objects, claiming C has no right to use it.
Answer: The easement is appurtenant because it benefits B's land, not B personally. Easements appurtenant run with the land and automatically transfer to future owners. C may use the easement.
Worked Example 1.2
O owns a large tract and sells the back half to B, who has no access to the road except by crossing O's retained land. The deed is silent about access. B uses a path over O's land for years.
Answer: B may have an easement by necessity if the parcel was landlocked at severance, or an easement by implication if there was prior use. If B's use was open, adverse, and continuous for the statutory period, B may also claim a prescriptive easement.
Worked Example 1.3
A landowner orally allows a neighbor to use his pond for fishing. The neighbor spends money building a dock. Later, the landowner tries to revoke permission.
Answer: Although licenses are generally revocable, a license may become irrevocable by estoppel if the licensee has made substantial expenditures in reliance. Here, the neighbor has an irrevocable license to use the pond as long as necessary to recoup the investment.
Exam Warning
On the MBE, mere nonuse of an easement does not terminate it. There must be clear evidence of intent to abandon, such as physical obstruction or written release.
Revision Tip
When analyzing a right to use land, first ask: Is it in writing? Is it tied to land or a person? Is it revocable? These questions help distinguish easements, profits, and licenses.
Summary
Easements, profits, and licenses are nonpossessory rights to use land. Easements are generally non-revocable and may be appurtenant or in gross. Profits allow removal of resources and are similar to easements but can be lost by overuse. Licenses are personal, revocable privileges and do not create interests in land. Creation, transfer, and termination rules differ for each, and distinguishing them is frequently tested on the MBE.
Key Point Checklist
This article has covered the following key knowledge points:
- Easements are nonpossessory rights to use land, created by express grant, implication, necessity, or prescription.
- Easements appurtenant benefit land and run with it; easements in gross benefit a person or entity.
- Easements are terminated by release, merger, abandonment, prescription, or satisfaction of a condition.
- Profits allow removal of resources and may be terminated by surcharge (overuse).
- Licenses are personal, revocable privileges and are not interests in land.
- Reliance may make a license irrevocable (license by estoppel).
- On the MBE, be able to distinguish easements, profits, and licenses by their creation, transferability, and revocability.
Key Terms and Concepts
- Easement
- Easement appurtenant
- Easement in gross
- Easement by prescription
- Merger (of easement)
- Profit
- License
