The MBE loves testing the difference between an easement and a license. They sound similar — both involve permission to use someone else’s land — but the bar examiners know that most students blur the line between them. That confusion costs points. Let’s fix it.

What Is an Easement?

An easement is a non-possessory interest in land that gives the holder the right to use another person’s property for a specific purpose. It’s a property interest, not just permission. That distinction matters.

Easements come in two main flavors: easements appurtenant and easements in gross. An easement appurtenant benefits a particular parcel of land (the dominant estate) and burdens another parcel (the servient estate). Think of a driveway easement that lets you cross your neighbor’s lot to reach the road. An easement in gross benefits a person rather than land — utility companies often hold these to run power lines across properties.

Here’s what makes an easement powerful: it’s a property interest that runs with the land. When you sell your property, the easement typically transfers with it. The new owner inherits your right to use the neighbor’s driveway. Easements are also generally irrevocable unless specific conditions for termination are met.

Creation matters on the MBE. Easements can be created expressly (by written grant or reservation), by implication (when land is subdivided and prior use was apparent and necessary), by necessity (landlocked parcels), or by prescription (adverse use for the statutory period — think adverse possession but for use rights, not ownership).

What Is a License?

A license is mere permission to use someone else’s land. It’s not a property interest. It’s personal permission, revocable at will.

When your neighbor tells you it’s fine to cut across his yard to retrieve your mail, that’s a license. When the movie theater lets you enter to watch a film, that’s a license. When a landowner says you can park in her driveway during construction on your property, that’s a license.

The defining characteristic: revocability. The person who granted the license can revoke it at any time, for any reason or no reason at all. You have no property interest to enforce. If the neighbor changes his mind tomorrow and tells you to stop cutting across his yard, you must comply.

Licenses don’t require formalities. They can be oral. They can be implied from conduct. They’re informal, temporary, and personal to the licensee. You can’t transfer a license to someone else, and it doesn’t run with the land if you sell your property.

The Key Differences That Show Up on the MBE

Property Interest vs. Permission

This is the foundational distinction. An easement is an interest in land recognized by property law. A license is contractual permission at best, a courtesy at worst. If you hold an easement and someone interferes with your use, you can bring a property-based cause of action. If you hold a license and it’s revoked, you have no remedy unless there’s an independent contractual claim.

Duration and Revocability

Easements are presumed permanent unless created with a specific duration or condition. They continue indefinitely and bind successive owners of the servient estate. Licenses are revocable at will. The moment the licensor says “no more,” the license ends.

The MBE tests this relentlessly. Fact pattern: “Owner tells Neighbor she can use the path across Owner’s land ‘for as long as she needs.’ Three years later, Owner sells the property to Buyer. Can Neighbor continue using the path?” If it’s a license, no — it’s revocable and doesn’t bind Buyer. If it’s an easement, yes — it runs with the land.

Writing Requirement

Here’s where students get tripped up. Easements are interests in land, so the Statute of Frauds applies. To create an easement, you generally need a written instrument (except for easements by implication, necessity, or prescription). Licenses require no writing. Oral permission is sufficient.

But watch for the trick: an attempted oral grant of an easement fails under the Statute of Frauds and becomes a license instead. The MBE loves this scenario. “Owner orally tells Neighbor he can cross Owner’s land to reach the lake indefinitely.” That’s not an easement — it’s a license, revocable despite the “indefinitely” language, because there’s no writing.

Transferability

Easements appurtenant run with the land. When the dominant estate is sold, the easement transfers automatically to the new owner. Easements in gross are transferable if commercial in nature (utility easements), but personal easements in gross typically are not.

Licenses are personal and non-transferable. You can’t sell your license or pass it to your buyer. It’s tied to you individually.

Estoppel: When a License Acts Like an Easement

There’s one critical exception to the revocability rule, and the MBE tests it frequently: irrevocable licenses created by estoppel.

If a licensee reasonably relies on the license to her detriment — typically by making substantial improvements or expenditures — equity may prevent the licensor from revoking the license. The license becomes “irrevocable” for a reasonable time or until the licensee recoups her investment.

Example: Owner tells Neighbor he can use a strip of Owner’s land to access Neighbor’s backyard. Relying on this permission, Neighbor spends $15,000 paving a driveway across Owner’s strip. Owner later tries to revoke permission. A court may hold that the license is irrevocable due to Neighbor’s detrimental reliance. The license doesn’t become an easement in a technical sense, but it functions like one — it can’t be revoked without compensating Neighbor or allowing enough time to recoup the investment.

The elements for estoppel: (1) the licensor grants permission, (2) the licensee reasonably relies on that permission, (3) the licensee makes substantial expenditures or improvements, and (4) revocation would cause unjust harm. This is an equity doctrine, so the MBE frames it in terms of fairness and reliance.

Spotting the Issue in MBE Fact Patterns

The examiners disguise the easement-versus-license distinction in several predictable ways.

Informal Language

Fact patterns use casual language to obscure whether a property interest was created. “Owner said Neighbor could use the driveway.” “Owner gave Neighbor permission to park there.” This language suggests a license unless there’s more — a writing, consideration, formalities indicating intent to create a property interest.

Attempted Oral Easements

“Owner orally agreed to grant Neighbor an easement.” Stop. That’s a license. The Statute of Frauds bars oral easements (with exceptions for implication, necessity, and prescription). The parties’ label doesn’t matter. If there’s no writing, it’s revocable permission.

Sale of the Burdened Property

“Owner grants Neighbor permission to cross Owner’s land. Owner then sells the land to Buyer. Does Neighbor’s right continue?” If it’s an easement, yes — it binds Buyer. If it’s a license, no — it’s personal to Owner and doesn’t run with the land. Look for whether there was a writing, whether the permission was tied to Neighbor’s land (suggesting an easement appurtenant), and whether the permission was clearly intended as a property interest.

Revocation Scenarios

“Three years later, Owner tells Neighbor to stop using the path. Can Owner do this?” If it’s a license, yes — revocable at will. If it’s an easement, no — easements are not unilaterally revocable (they terminate through abandonment, merger, release, or other specific doctrines, but not mere revocation). Check for detrimental reliance that might create an irrevocable license by estoppel.

Termination: Another Key Difference

Easements terminate in limited ways: by the terms of the grant (if created with a specific duration), by merger (when the dominant and servient estates come under common ownership), by release (written agreement), by abandonment (intent plus affirmative conduct showing intent to permanently cease use — mere non-use isn’t enough), by estoppel, by prescription (the servient owner adversely possesses against the easement holder), or by condemnation.

Licenses terminate easily: by revocation, by the licensee’s attempted transfer, by death of either party, by sale of the servient estate, or by completion of the licensed purpose.

The MBE tests whether a right has ended. If the fact pattern says “Owner told Neighbor to stop using the path,” that ends a license but not an easement. If it says “Neighbor stopped using the path for 15 years,” that’s not enough to terminate an easement by abandonment (you need intent plus conduct, not just non-use), but a license might be deemed ended by the circumstances.

Practical Advice: How to Approach These Questions

When you see a fact pattern involving one person’s use of another’s land, ask these questions in order:

  1. Is there a writing? If yes, lean toward easement. If no, lean toward license (unless implication, necessity, or prescription applies).

  2. What language did the parties use? “Grant,” “easement,” “right-of-way” suggest property interest. “Permission,” “allow,” “let” suggest license.

  3. Is the right tied to land or to a person? If Neighbor’s use benefits his parcel, it’s likely an easement appurtenant. If it’s just personal convenience, it’s likely a license.

  4. Has the property been sold? If the question asks whether the right binds a successor, that’s testing whether it’s an easement (runs with the land) or license (personal, doesn’t bind successors).

  5. Did the licensee rely to her detriment? If yes, consider irrevocable license by estoppel.

  6. Can the grantor revoke it? If the answer should be “no” based on the facts, it’s an easement or an irrevocable license. If the answer is “yes,” it’s a revocable license.

What to Memorize for Exam Day

Lock in these rules:

Easement: Non-possessory property interest in land. Generally requires a writing (Statute of Frauds). Runs with the land. Not revocable at will. Terminates only through specific doctrines (release, merger, abandonment with intent, etc.).

License: Revocable permission to use land. No writing required. Personal to the licensee. Does not run with the land. Terminates by revocation, death, sale, or completion of purpose.

Irrevocable License: A license becomes irrevocable by estoppel if the licensee reasonably relies to her detriment (substantial expenditure or improvement). It remains a license but cannot be revoked without compensation or a reasonable time to recoup.

Statute of Frauds: Easements require a writing. Attempted oral easements become revocable licenses.

Transferability: Easements appurtenant transfer with the dominant estate. Licenses do not transfer.

Revocation: Licenses are revocable at will. Easements are not.

If you want all 111 Real Property rules organized for active recall — including the full breakdown of easement creation methods, termination doctrines, and the elements of every property interest tested on the MBE — FlashTables covers this in a structured two-column format designed to help you memorize exactly what the examiners expect. The easement-versus-license distinction is just one of dozens of property rules you need cold on exam day, and having them all in one place makes drilling these differences far more efficient than flipping through outlines.

Master this distinction now. The MBE will test it. And when it does, you’ll know exactly how to spot whether that “permission” is a revocable courtesy or a property right that binds the world.