5.1 Appurtenant Easements
A title examiner may presume that an appurtenant easement is created when a right benefiting one property (the dominant estate) to use another property (the servient estate) for a specific purpose is established in an instrument executed with deed formalities. An express appurtenant easement may be created either by grant to a grantee or by reservation of an easement by the grantor.
Comment 1. An appurtenant easement is one that serves a parcel of land rather than a particular person and one which is incident to the ownership of the dominant estate. An appurtenant easement runs with the land to which it is appurtenant, and passes with the land to a subsequent grantee with passage of the title of the dominant estate, whether or not reference is made to the appurtenant easement within the vesting instrument. Construction of an easement appurtenant is favored over an easement in gross. See generally Barrett v. Kunz, 158 VT 15 (1992) and Rowe v. Lavanway, 180 VT 505 (2006).
Generally, an appurtenant benefit may not be severed and transferred separately from all or part of the benefitted property. A dominant estate’s interest in an easement cannot be severed from the land by transferring it to a third party. An appurtenant easement is incapable of an existence separate from the dominant estate. See generally, Nordlund v. Van Nostrand, 2007-027 (VT) (all citations and references omitted).
Comment 2. There is no specific or required language to create an express appurtenant easement other than the words of grant or reservation in the deed. For example, use of a phrase such as “and their heirs and assigns” is not required; however, use of such a phrase creates a presumption that the easement is intended to run with the land.
Comment 3. Under the common-law merger doctrine, an easement ceases to exist when the dominant and servient estates come into common ownership. When the burdens and benefits of an easement are united in a single person the servitude ceases to serve any function. Because no one else has an interest in enforcing the servitude, the servitude terminates by operation of law. See generally, Fletcher v. Ferry, 181 Vt. 294, 296 (2007) (all citations and references omitted).
Comment 4. Unless extinguished, easements created outside the time period covered by the Marketable Record Title Act still encumber the property. 27 VSA §604(a)(6), (7). However, an easement by necessity may be extinguished by the application of the Marketable Record Title Act in certain circumstances if notice is not timely recorded. See, Standard 5.4.
Comment 5. In construing an express easement, the intent of the parties governs. Several principles guide interpretation. First, a dominant estate is entitled to use an easement in a manner that is reasonably necessary for the convenient enjoyment of the servitude. Second, the easement must be used in a manner consistent with the use contemplated at the time of its creation and may not be used in a way that materially increases the burden on the servient estate. Whether a particular use overburdens an easement depends on the easement’s original purpose and the scope of its authorized use. Third, the manner, frequency, and intensity of the use of the easement may change over time to take advantage of developments in technology and to accommodate normal development permitting servitudes to retain their utility over time, if doing so would reflect the expectations of the parties who create servitudes of indefinite duration. See generally, Post & Beam Equities Group, LLC v. Sunne Village Development Property Owners Association, 199 Vt. 313, 339 (2015) (all citations and references omitted).
Comment 6. A change in location generally requires the consent of the owners of both the benefitted property and the burdened property, but the consent can be implied from acts or acquiescence. As to the unilateral movement or relocation of easements, see Sweezey v. Neel, 179 Vt. 507 (2006) for surface easements, and Roy v. Woodstock Community Trust, Inc. 195 Vt. 427 (2014) for subsurface easements.
Comment 7. An appurtenant easement may not be created in favor of a third party by reservation in a deed. First National Bank of St. Johnsbury v. Laperle, 86 A.2d 635, 639 (Vt. 1952).
Comment 8. An appurtenant easement may be terminated by conveyance or release by the owner of the dominant estate to the owner of the servient estate.
Comment 9. While an easement may be extinguished by an abandonment, non-use alone will not suffice, no matter how long continued. To establish an abandonment there must be, in addition to non-use, acts by the owner of the dominant tenement conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence. As noted in Okemo Mountain, Inc., ” it is difficult to establish adverse possession of an easement where the dominant owner abstains from using the easement.” See, Rowe v. Lavanway, 904 A.2d 78, 180 Vt. 505, 2006 VT 47, (Vt. 2006), all citations omitted.
Comment 10. A negative easement prohibits the owner of the servient estate from doing something that would otherwise be permissible such as constructing a building to block light or air.
History
September 2020 – Standard Added.
Find your town clerk
- 1.1 The Role of the Examining Attorney
- 1.2 The Examining Attorney’s Attitude
- 1.3 Definition of Marketable Title
- 1.4 Reference to Title Standards in Real Estate Sales Contract
- 2.1 Period of Search
- 2.2 The Concept of the Chain Of Title and Its Relationship to the Rule Of Record Notice and the Scope of the Title Searcher’s Obligation
- 2.3 Effect of the Recording of Instruments Claiming an Interest in Real Estate
- 2.4 Wild Instruments Instruments By Strangers to the Record Chain of Title
- 2.4A After-Acquired Title
- 2.5 Priority of Conveyances
- 2.6 Time When a Conveyance is Considered as Properly “Recorded”
- 2.7 Record of Expired Leases or Expired Interests
- 3.1 Perpetual Lease Land
- 4.1 Limitations on the Use By Grantor of Corrective Deeds
- 5.1 Appurtenant Easements
- 5.2 Easement In Gross
- 5.3 Implied Easement – By Plat
- 5.4 Implied Easement – By Necessity or Implication
- 5.5 Implied Easement – By Prescription
- 5.6 License
- 6.1 Grantors
- 6.2 Majority
- 6.3 Mental Capacity
- 6.4 Marital Interests
- 6.5 Powers of Attorney
- 7.1 Grantees
- 8.1 Name Variances
- 9.1 Execution and Acknowledgment
- 9.2 Execution of Court Documents Recorded in the Land Records by Electronic Signatures
- 10.1 Property Descriptions
- 11.1 Delivery
- 12.1 Conveyance By Guardian Appointed By Vermont Court
- 13.1 Conveyance by Heirs’ Deed
- 13.2 Conveyance by Devisees in Lieu of Probate Administration
- 13.4 Conveyance by Trustee of a Non-Probate Trust
- 13.3 Omitted Real Estate or Faulty Description of Closed Estate
- 14.1 Conveyance to Two or More Persons
- 15.1 Deeds Retaining Life Estates With Reserved Powers
- 16.1 Attachments and Liens
- 16.2 Judgment Liens
- 17.2 Deeds in Lieu of Foreclosure
- 17.3 Title Derived from a Foreclosure
- 17.4 The Effect Of Recording A Complaint On Subsequently Recorded Interest
- 17.5 Discharge of Mortgage Or Other Interests Following a Foreclosure Action
- 18.1 Discharges of Mortgages
- 18.2 Irregularities and Discrepancies in Discharges of Mortgage and other Documents
- 18.3 Discharges of Corrected, Re-Recorded, or Modified Mortgages
- 18.4 Effect of Failure to Discharge Assignments of Leases and/or Rent, Riders or Financing Statements
- 18.5 Discharges Involving Mortgage Electronic Registration System (MERS)
- 18.6 Effect Of Failure To Release A Multi-Town Mortgage In All Towns Where It Was Recorded
- 18.7 Home Equity Conversion (Reverse) Mortgage Loans Unreleased HUD Second Mortgage
- 19.1 Tax Collector’s Deed
- 20.1 Presumptions Applicable to Corporate Conveyances
- 21.1 The Effect of a Discharge of Debtor in Bankruptcy Court Upon Existing Secured Liens
- 22.1 Conveyances To and From Limited Liability Companies in the Chain of Title
- 21.2 Sales Fee and Clear of Liens and Interests
- 23.1 Federal General Tax Lien
- 24.1 Federal Special Estate Tax Lien
- 25.1 Federal Special Gift Tax Lien
- 27.1 Vermont Estate Tax Lien
- 28.1 Establishing Marketable Title To Interests In Real Property Owned By Failed Financial Institutions
- 28.2 Title of the Receiver of a Failed Financial Institution to the Assets of That Institution
- 28.3 Title of the Immediate Transferee of the Receiver of a Failed Financial Institution
- 28.4 Marketability of Title In a Real Estate Interest of a Failed Financial Institution for Which No Conveyance, Transfer or Assignment Appears of Record Prior to the Dissolution of the Bridge Institution Which Had Continued The Business of the Failed Institution
- 28.5 Discharges, Partial Releases, Assignments and Foreclosure of Mortgages of a Failed Institution By a Transferee of the Receiver For Such Failed Institution
- 29.1 Conveyance of Mobile Homes
- 30.1 Conveyances to and from a General Partnership in the Chain of Title
- 30.2 PARTNERSHIP HOLDING TITLE TO REAL PROPERTY
- 31.1 COMMON INTEREST COMMUNITIES
- 31.2 UNIT DESCRIPTIONS IN INSTRUMENTS OF CONVEYANCE
- 32.1 Parties in Possession and Leaseholds
- 32.2 Expired Leases
- 32.3 Terminated Leases
- 33.1 Covenants
- 33.2 Implied Covenants – Common Scheme
- 33.3 Covenants – Architectural/Design Review
View all Title Standards
- 1.1 The Role of the Examining Attorney
- 1.2 The Examining Attorney’s Attitude
- 1.3 Definition of Marketable Title
- 1.4 Reference to Title Standards in Real Estate Sales Contract
- 2.1 Period of Search
- 2.2 The Concept of the Chain Of Title and Its Relationship to the Rule Of Record Notice and the Scope of the Title Searcher’s Obligation
- 2.3 Effect of the Recording of Instruments Claiming an Interest in Real Estate
- 2.4 Wild Instruments Instruments By Strangers to the Record Chain of Title
- 2.4A After-Acquired Title
- 2.5 Priority of Conveyances
- 2.6 Time When a Conveyance is Considered as Properly “Recorded”
- 2.7 Record of Expired Leases or Expired Interests
- 3.1 Perpetual Lease Land
- 4.1 Limitations on the Use By Grantor of Corrective Deeds
- 5.1 Appurtenant Easements
- 5.2 Easement In Gross
- 5.3 Implied Easement – By Plat
- 5.4 Implied Easement – By Necessity or Implication
- 5.5 Implied Easement – By Prescription
- 5.6 License
- 6.1 Grantors
- 6.2 Majority
- 6.3 Mental Capacity
- 6.4 Marital Interests
- 6.5 Powers of Attorney
- 7.1 Grantees
- 8.1 Name Variances
- 9.1 Execution and Acknowledgment
- 9.2 Execution of Court Documents Recorded in the Land Records by Electronic Signatures
- 10.1 Property Descriptions
- 11.1 Delivery
- 12.1 Conveyance By Guardian Appointed By Vermont Court
- 13.1 Conveyance by Heirs’ Deed
- 13.2 Conveyance by Devisees in Lieu of Probate Administration
- 13.4 Conveyance by Trustee of a Non-Probate Trust
- 13.3 Omitted Real Estate or Faulty Description of Closed Estate
- 14.1 Conveyance to Two or More Persons
- 15.1 Deeds Retaining Life Estates With Reserved Powers
- 16.1 Attachments and Liens
- 16.2 Judgment Liens
- 17.2 Deeds in Lieu of Foreclosure
- 17.3 Title Derived from a Foreclosure
- 17.4 The Effect Of Recording A Complaint On Subsequently Recorded Interest
- 17.5 Discharge of Mortgage Or Other Interests Following a Foreclosure Action
- 18.1 Discharges of Mortgages
- 18.2 Irregularities and Discrepancies in Discharges of Mortgage and other Documents
- 18.3 Discharges of Corrected, Re-Recorded, or Modified Mortgages
- 18.4 Effect of Failure to Discharge Assignments of Leases and/or Rent, Riders or Financing Statements
- 18.5 Discharges Involving Mortgage Electronic Registration System (MERS)
- 18.6 Effect Of Failure To Release A Multi-Town Mortgage In All Towns Where It Was Recorded
- 18.7 Home Equity Conversion (Reverse) Mortgage Loans Unreleased HUD Second Mortgage
- 19.1 Tax Collector’s Deed
- 20.1 Presumptions Applicable to Corporate Conveyances
- 21.1 The Effect of a Discharge of Debtor in Bankruptcy Court Upon Existing Secured Liens
- 22.1 Conveyances To and From Limited Liability Companies in the Chain of Title
- 21.2 Sales Fee and Clear of Liens and Interests
- 23.1 Federal General Tax Lien
- 24.1 Federal Special Estate Tax Lien
- 25.1 Federal Special Gift Tax Lien
- 27.1 Vermont Estate Tax Lien
- 28.1 Establishing Marketable Title To Interests In Real Property Owned By Failed Financial Institutions
- 28.2 Title of the Receiver of a Failed Financial Institution to the Assets of That Institution
- 28.3 Title of the Immediate Transferee of the Receiver of a Failed Financial Institution
- 28.4 Marketability of Title In a Real Estate Interest of a Failed Financial Institution for Which No Conveyance, Transfer or Assignment Appears of Record Prior to the Dissolution of the Bridge Institution Which Had Continued The Business of the Failed Institution
- 28.5 Discharges, Partial Releases, Assignments and Foreclosure of Mortgages of a Failed Institution By a Transferee of the Receiver For Such Failed Institution
- 29.1 Conveyance of Mobile Homes
- 30.1 Conveyances to and from a General Partnership in the Chain of Title
- 30.2 PARTNERSHIP HOLDING TITLE TO REAL PROPERTY
- 31.1 COMMON INTEREST COMMUNITIES
- 31.2 UNIT DESCRIPTIONS IN INSTRUMENTS OF CONVEYANCE
- 32.1 Parties in Possession and Leaseholds
- 32.2 Expired Leases
- 32.3 Terminated Leases
- 33.1 Covenants
- 33.2 Implied Covenants – Common Scheme
- 33.3 Covenants – Architectural/Design Review
CATIC | Vermont Attorneys Title Corporation
76 Pearl Street, Suite 203, Essex Junction, VT 05452
WATS: 1 (800) 649-3366 Phone: 1 (802) 876-6800 Fax: 1 (802) 876-6801 Email:
Website by Stride Creative Group