You’re staring at an MBE question about an easement that was created in 1952, modified in 1978, and potentially terminated in 2023. Your brain freezes. Was it created by prescription or necessity? Can the dominant estate expand its use? Did the merger doctrine apply? Easement questions consistently trip up bar examinees because they require you to juggle creation methods, scope limitations, and multiple termination pathways—all while analyzing decades of property transfers.
Let’s break down exactly what you need to know about easements for the MBE, organized by the three critical phases: creation, scope, and termination.
What Is an Easement and Why Does It Matter?
An easement is a nonpossessory interest in land that gives the holder the right to use another person’s property for a specific purpose. The land benefiting from the easement is called the dominant estate (or dominant tenement), and the land burdened by the easement is the servient estate (or servient tenement).
The MBE loves easements because they test your ability to trace property rights through multiple transfers, distinguish between similar doctrines, and apply technical rules about when rights expand or terminate. You’ll see them in questions involving driveways, utility lines, beach access, and landlocked parcels.
Creating an Easement: Four Main Methods
The bar exam tests four primary ways easements are created. Each has distinct elements you must memorize.
Easement by Grant or Reservation
This is the straightforward method: the easement is created by written instrument. An easement by grant occurs when a landowner conveys an easement interest to another party. An easement by reservation occurs when a grantor conveys land but reserves an easement in that land for himself.
Critical detail: Under the Statute of Frauds, an easement must be in writing unless it falls under an exception. The writing must describe the easement’s location and purpose with reasonable certainty.
Watch for the common law rule that an easement cannot be reserved in favor of a third party—only the grantor can reserve an easement for himself. Many modern jurisdictions have abandoned this rule, but the MBE may test the traditional approach.
Easement by Implication
An easement may be implied from a prior existing use when land is divided. The elements are:
- Common ownership followed by severance (the land was once unified, then divided)
- Apparent and continuous use existing at the time of severance
- The use must be reasonably necessary to the enjoyment of the dominant estate
- The parties intended the use to continue after severance (inferred from the circumstances)
Example: Owner has a single parcel with a driveway running across the western portion to reach a garage on the eastern portion. Owner sells the eastern portion to Buyer, making no mention of the driveway. If the driveway was visible and Buyer has no other reasonable access to the garage, a court will likely imply an easement allowing Buyer to continue using the driveway.
The key distinction between “reasonably necessary” for implied easements versus “strictly necessary” for easements by necessity (discussed next) trips up many examinees. Implied easements require only reasonable necessity—there might be alternative access, but it’s significantly less convenient or practical.
Easement by Necessity
An easement by necessity arises when land is landlocked and has no access to a public road or way. The elements are:
- Common ownership followed by severance
- Strict necessity at the time of severance (not mere convenience)
The necessity must exist at the time the land is divided. If the dominant estate later acquires an alternative means of access, the easement by necessity terminates automatically because the necessity no longer exists.
Here’s a classic MBE trap: Owner divides a parcel into Lot 1 (fronting the road) and Lot 2 (landlocked behind Lot 1). Owner sells Lot 2 to Buyer. An easement by necessity is implied across Lot 1 to give Buyer access to the public road. Years later, the county builds a new road along the back boundary of Lot 2. The easement by necessity terminates because Lot 2 is no longer landlocked.
Easement by Prescription
An easement by prescription is acquired through adverse use of another’s land, similar to adverse possession but resulting in an easement rather than ownership. The elements mirror adverse possession:
- Actual use that is
- Open and notorious (visible and apparent)
- Adverse/hostile (without the owner’s permission)
- Continuous for the statutory period (typically 10-20 years depending on jurisdiction)
- Exclusive use is NOT required (unlike adverse possession)
The “adverse” element causes the most confusion. If the owner gives permission for the use, it’s not adverse, and no prescriptive easement can arise. The use must be under a claim of right—the user is acting as if they have the legal right to use the property.
Hypothetical: Neighbor uses a path across Owner’s land to reach the lake every weekend for fifteen years. The use is open (Owner can see it happening), continuous (regular pattern over the statutory period), and without permission. Neighbor acquires a prescriptive easement for lake access. But if Owner had said, “Sure, you can use the path anytime,” the use would be permissive, and no easement would arise.
Scope of Easements: When Can Use Expand?
Once an easement exists, fights often arise about how much use is permitted. The general rule: the scope of an easement is determined by the terms of the grant or, if created by implication or prescription, by the nature and extent of the use that gave rise to the easement.
Changes in Use by the Dominant Estate
The dominant estate holder may make normal development of their land, even if it increases the burden on the servient estate, as long as the increase is reasonable and related to the original purpose. But the dominant estate cannot expand the easement to benefit additional property that wasn’t part of the original dominant estate.
Classic exam pattern: Owner has an easement to cross Blackacre to reach Whiteacre (dominant estate). Owner later purchases adjacent Greenacre and attempts to use the easement to access both Whiteacre and Greenacre. This is an impermissible expansion—the easement was created to benefit Whiteacre only, and it cannot be extended to benefit the newly acquired Greenacre.
However, if the dominant estate is subdivided, courts generally allow all resulting parcels to use the easement, provided the burden on the servient estate is not unreasonably increased.
Changes to the Servient Estate
The servient estate owner may make reasonable changes to the location of the easement if the change does not significantly lessen the utility of the easement or increase the burden on the dominant estate holder. The servient owner cannot unilaterally relocate an express easement without consent unless a statute specifically permits it (modern trend in some states).
The servient owner can use their land in any way that doesn’t interfere with the easement. They can cross over an easement, build above or below it (if it’s a surface easement), or grant additional easements to others—but they cannot obstruct or substantially interfere with the dominant estate’s use.
Terminating an Easement: Eight Ways Rights End
Easement termination is heavily tested because it requires you to distinguish between similar-sounding doctrines. Here are the methods you must know:
1. Expiration: If the easement was created for a specific duration, it terminates automatically when that period ends.
2. Merger: When the dominant and servient estates come into common ownership, the easement is extinguished by merger. If the estates are later separated again, the easement does not automatically revive—it must be recreated.
3. Release: The easement holder may execute a written release (subject to the Statute of Frauds) that extinguishes the easement. An oral release is ineffective.
4. Abandonment: Requires both (1) intent to abandon and (2) affirmative conduct demonstrating that intent. Mere non-use, no matter how long, is insufficient. The dominant estate holder must take physical action inconsistent with continued use (like building a structure that blocks access to the easement).
5. Estoppel: If the easement holder makes representations or takes actions that cause the servient estate owner to reasonably change position in detrimental reliance, the easement may be terminated by estoppel.
6. Prescription: The servient estate owner can terminate an easement by adversely and continuously interfering with it for the statutory period, essentially acquiring a prescriptive right to exclude the easement holder.
7. Necessity: Easements by necessity terminate automatically when the necessity ends (for example, when the landlocked parcel gains access to a public road through other means).
8. Condemnation: Government exercise of eminent domain over the servient estate terminates the easement, and the easement holder is entitled to just compensation.
MBE Strategy: What to Memorize
When you see an easement question, work through this checklist:
For creation issues:
- Was there a written grant? (Statute of Frauds applies)
- If implied, was there prior common ownership, apparent use, and reasonable necessity?
- If by necessity, was the land strictly landlocked at severance?
- If prescriptive, was use open, notorious, adverse, and continuous for the statutory period?
For scope issues:
- What was the original purpose and extent of use?
- Is the dominant estate trying to benefit additional property not part of the original grant?
- Has use increased beyond reasonable development?
For termination issues:
- Did the estates merge under common ownership?
- Is there affirmative conduct showing abandonment (not just non-use)?
- Did the necessity that created the easement disappear?
The most common mistake is confusing “reasonable necessity” (implied easement) with “strict necessity” (easement by necessity), or thinking that mere non-use constitutes abandonment. The bar examiners design wrong answer choices around these exact confusions.
Putting It All Together
Easement questions require you to move chronologically through property transfers while applying technical rules at each stage. You need to know not just whether an easement was created, but whether subsequent events modified its scope or terminated it entirely. This is exactly the kind of layered analysis where having all the rules organized in one place makes the difference between confusion and confidence.
FlashTables Real Property covers all easement creation methods, scope limitations, and termination rules in a structured format designed for active recall. When you’re comparing easement by implication versus easement by necessity, or trying to remember all eight termination methods under time pressure, having the elements laid out side-by-side makes pattern recognition automatic. The Real Property table includes 111 rules following the NCBE outline, so you’re studying exactly what the MBE tests—nothing more, nothing less.
Master the creation-scope-termination framework, drill the distinctions between similar doctrines, and you’ll handle easement questions with the same confidence you’d bring to a straightforward fee simple absolute problem. The rules are technical, but they’re finite. Learn them systematically, and easements become points you can count on.