Rights in real property - Easements, profits, and licenses

Learning Outcomes

This article explains rights in real property relating to easements, profits, and licenses, including:

• The core definitions and distinguishing characteristics of easements, profits, and licenses, and how to classify a use right in common MBE-style fact patterns.
• The differences between easements appurtenant and easements in gross, including who holds the benefit and how those interests run with the land or remain personal.
• The principal methods of creating easements and profits—express grant or reservation, implication, necessity, and prescription—and how failed written grants often operate as licenses instead.
• How scope, apportionment, and transfer rules control modern and evolving uses, and when expanded use becomes an unreasonable overburden on the servient estate.
• The main doctrines that terminate easements and profits—release, merger, abandonment, prescription by the servient owner, satisfaction of conditions, condemnation, and end of necessity—and how each appears in exam questions.
• The nature of licenses as non‑property interests, their usual revocability and non-transferability, and the limited circumstances creating licenses coupled with an interest.
• How license-by-estoppel (irrevocable licenses) arises from reliance, and how to select between answer choices labeled ‘easement by estoppel’ and ‘irrevocable license’ on the MBE.
• Strategic exam approaches for spotting common traps, such as oral “easements,” mere nonuse, negative easement claims, and overbroad assertions of prescriptive rights.

MBE Syllabus

For the MBE, you are required to understand the principles governing nonpossessory rights in real property, with a focus on the following syllabus points:

• The definition and types of easements, including easement appurtenant and easement in gross.
• Methods of creating easements: express, implication, necessity, and prescription.
• The scope, apportionment, transfer, and termination of easements.
• The nature and creation of profits and how they differ from easements.
• The definition, characteristics, and revocability of licenses (including licenses coupled with an interest and licenses by estoppel).
• Distinguishing easements, profits, and licenses in exam scenarios and understanding common exam traps (e.g., oral “easements,” nonuse, and overburdening).

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.

1. Which of the following is a key distinction between an easement and a license?
   1. An easement is always revocable at will.
   2. A license is an interest in land.
   3. An easement is generally not revocable, while a license is.
   4. A license is transferable to successors in title.
2. 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?
   1. Easement appurtenant
   2. Easement in gross
   3. Profit
   4. License
3. Which of the following will NOT terminate an easement?
   1. Written release by the easement holder
   2. Complete consolidation of ownership of dominant and servient estates
   3. Mere nonuse for 5 years
   4. Express condition in the grant that is satisfied
4. 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?
   1. Easement by prescription
   2. Easement by implication
   3. Irrevocable license by estoppel
   4. 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.

Key Term: Servient estate
The parcel of land burdened by an easement or profit (the land being used).

Key Term: Dominant estate
The parcel of land benefited by an easement appurtenant (the land that enjoys the use).

Easements and profits are interests in land. That means:

• They are normally subject to the Statute of Frauds if intended to last more than one year.
• They can “run with the land” and bind successors in appropriate circumstances.
• They are protected against interference like other property interests (e.g., via injunction).

By contrast, licenses are not interests in land. They are merely personal privileges to enter or use land, generally revocable at will.

Most easements are affirmative: they allow the holder to do something on the servient land (e.g., cross, lay pipes, place utility poles). A small group are negative, allowing the holder to prevent the servient owner from doing something on the servient land that would otherwise be lawful.

Key Term: Affirmative easement
An easement that permits the holder to use the servient land in some way.

Key Term: Negative easement
An easement that allows the holder to prevent the servient owner from doing something otherwise permissible on the servient land (e.g., blocking light).

Negative easements are tightly limited at common law (traditionally to light, air, support, and stream water) and almost always must be created by express writing. On the MBE, if you see someone claiming a negative easement by implication or prescription, treat that with great skepticism unless the facts clearly indicate an express grant or a modern statutory “conservation easement.”

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.

Examples:

• If O grants “to A a right of way over Blackacre to reach A’s parcel,” A’s parcel is dominant; Blackacre is servient. The easement is appurtenant and automatically passes with A’s parcel, even if not mentioned in later deeds.
• If O grants “to UtilityCo a right to run power lines across Blackacre,” there is no dominant estate. This is an easement in gross, typically commercial and assignable.

Exam pointers:

• If the grant language identifies a nearby parcel as the beneficiary (“to A as a driveway to A’s land”), that strongly suggests an appurtenant easement.
• If the grant benefits a named person or company without reference to land (“to A the right to fish in the pond”), that typically indicates an easement in gross.
• When ambiguous, modern courts tend to presume an easement is appurtenant if there is land that could reasonably be benefited. The MBE often adopts that presumption.

Commercial easements in gross (utility lines, railroad rights of way, pipeline easements) are usually transferable and often apportionable. Purely personal easements in gross (“to A the right to swim in the pool”) are generally not transferable unless the grant clearly says otherwise.

Creation of Easements

Easements can be created in several ways. On the MBE, immediately ask:

• Who owned what before and after the conveyance?
• Was there prior use or necessity at the time of severance?
• Was the claimant’s use permissive or adverse?

The main creation methods:

• Express grant or reservation
• Implication (easement implied from prior use or from a recorded map/plat)
• Necessity
• Prescription

Key Term: Easement by implication (from prior use)
An easement arising when land is severed and, prior to severance, one part was used for the benefit of another in an apparent, continuous way that is reasonably necessary for enjoyment of the dominant parcel.

Key Term: Easement by necessity
An easement arising when, after severance of common ownership, a parcel becomes landlocked and access across the other parcel is strictly necessary.

1. Express easements (grant or reservation)

An express easement is created by written instrument, usually a deed or easement agreement, that:

• Satisfies the Statute of Frauds (signed writing),
• Identifies the servient land,
• Identifies the dominant land if the easement is appurtenant, and
• Describes the nature, location, and extent of the easement with reasonable certainty.

Examples:

• “Grantor conveys to Grantee a right-of-way 10 feet wide across the north edge of Blackacre.”
• “O conveys Blackacre to A, reserving for O a right-of-way over the south 15 feet for ingress and egress to O’s retained parcel.”

The grantor may reserve an easement over land she is conveying (e.g., selling the back half but reserving a path across it). At common law, a reservation in favor of a true third party (someone who is not the grantor or grantee) was void. Some modern courts relax this rule, but on the MBE, unless the question clearly applies a modern statute, assume that an attempted reservation in favor of a stranger does not create a valid easement in that stranger.

Express easements are typically recorded. A bona fide purchaser of the servient estate who gives value and lacks notice (actual, record, or inquiry) of an unrecorded express easement takes free of that easement.

Practical exam points:

• If the writing is defective under the Statute of Frauds (e.g., oral agreement) but the claimant has made substantial improvements in reliance, courts may protect the claimant using license by estoppel rather than enforcing an oral easement. The MBE usually labels this “irrevocable license” or “easement by estoppel.”
• A vague description (“a convenient right of way”) is not automatically fatal; courts will try to give effect and interpret it as a reasonable route.

2. Easements implied from prior use

An easement by implication (sometimes called an easement implied from a quasi-easement) arises when:

• A single owner uses one part of the land for the benefit of another part (a quasi-easement).
• The owner then severs title into two or more parcels.
• The prior use was apparent (discoverable on reasonable inspection) and continuous.
• The use is reasonably necessary for enjoyment of the dominant parcel.

Classic example: O owns a large tract with a gravel driveway used for years to reach the back portion. O sells the back parcel to A but says nothing about access. A may have an easement implied from prior use over the driveway.

Key nuances:

• The prior use must exist at the time of severance. Later-created uses do not support an implication.
• “Reasonably necessary” is a lower standard than the “strict necessity” required for an easement by necessity. If there is some alternative route, but it is much more expensive or impractical, an implied easement might still arise.
• The implied easement can benefit either the grantor or the grantee; the important question is the pattern of use at the time of severance, not who retains or conveys which parcel.

Implied easements can also arise from a recorded subdivision map or plat. If a developer records a plat showing streets or pathways, and lots are sold with reference to that plat, purchasers typically receive an implied easement to use those streets, even if the deed is silent.

3. Easements by necessity

An easement by necessity arises when:

• There is severance of title: both parcels were formerly under common ownership.
• At the time of severance, one parcel becomes landlocked (no legal access to a public road or other necessary outlet).
• Strict necessity exists (no reasonable legal alternative access).

The easement is usually limited to ingress and egress to reach a public road, but may also extend to utilities if strictly necessary in the jurisdiction. It lasts only so long as the necessity continues. If the dominant owner later acquires another legal access, the easement by necessity terminates automatically.

Important exam cautions:

• Without prior common ownership, there is no common-law easement by necessity. Mere landlocking by surrounding strangers is not enough.
• Necessity is measured at the moment of severance. If a parcel had road access at severance but later loses it (e.g., due to the government closing a road), a common-law easement by necessity usually does not arise; the problem is addressed, if at all, by statute.

4. Easements by prescription

Key Term: Easement by prescription
An easement acquired through continuous, open, and adverse use of another's land for the statutory period.

The elements closely track adverse possession, with one major difference: exclusive possession is not required. The claimant must show:

• Open and notorious use: visible so that a reasonable owner could discover it.
• Adverse/hostile use: without the owner’s permission.
• Continuous and uninterrupted for the statutory period (often the same limitations period as for adverse possession).
• Use of the same general route and type of use throughout the period.

Additional points:

• Permission defeats adversity. “Neighborly accommodation” (e.g., “Sure, use my driveway anytime”) will not ripen into a prescriptive easement unless the permission is clearly terminated and adverse use then continues for the full statutory period.
• Some jurisdictions presume adversity from long, unexplained use; others presume permissive use over unenclosed, wild rural land. The MBE will usually give you enough facts to determine whether use was adverse or permissive.
• Tacking is permitted: successive users can add their periods of use together if they are in privity (e.g., deed from one owner of the dominant land to another).
• Prescriptive easements cannot generally be acquired against government land.

The scope of a prescriptive easement is limited to the kind and intensity of use actually made during the prescriptive period. A path established by walking and occasional vehicle use cannot automatically be expanded into a high-traffic road serving a large commercial center.

Scope and Transfer of Easements

The scope of an easement is determined by:

• The terms of its creation (for express easements).
• The prior use or necessity that gave rise to it (for implied or necessity easements).
• The pattern of use during the prescriptive period (for prescriptive easements).

On the MBE, ask in “scope” questions:

• Is the new use reasonably foreseeable given the original purpose?
• Does the new use unreasonably increase the burden on the servient estate?
• Is one party attempting to move the easement or expand it without consent?

Examples:

• Using a right-of-way originally used by horse traffic for ordinary car traffic is typically allowed; later technological changes that do not fundamentally change the character of the burden are usually permitted.
• Converting a narrow farm access easement to serve a large shopping center with heavy truck traffic may be an unreasonable increase in burden (overburdening).
• The servient owner generally may not unilaterally relocate the easement route at common law. A minority of modern statutes allow reasonable relocation at the servient owner’s expense if the dominant owner’s rights are not materially affected. Check the facts: the MBE will usually signal which rule applies.

Key Term: Apportionment (of easement)
The sharing of an easement right by multiple users or transferees, subject to not unreasonably increasing the burden on the servient estate.

If the dominant estate is subdivided, each part generally enjoys the easement, as long as the cumulative use does not unreasonably overburden the servient estate. But if the easement’s language or circumstances show its purpose was limited (e.g., “for access to a single cottage”), a court may restrict use when the dominant parcel is subdivided and intensively developed.

Easements appurtenant automatically transfer with:

• The dominant estate: the benefit runs with the land, whether or not mentioned in subsequent deeds, as long as the successor has notice.
• The servient estate: the burden runs, binding later purchasers who have notice (actual, record, or inquiry).

Easements in gross:

• Personal easements in gross (e.g., “to A the right to fish in the pond”) are usually not transferable and end on the holder’s death unless the grant clearly makes them transferable.
• Commercial easements in gross (e.g., utility, railroad, pipeline) are generally transferable and may be apportioned if consistent with the original grant. For example, a railroad may license other companies to run trains over its right-of-way so long as traffic volume remains within reasonable bounds.

Termination of Easements

Easements may be terminated by several doctrines. On the MBE, precision matters: identify the specific terminating event and match it to the correct doctrine. Mislabeling can cost the question.

Key Term: Merger (of easement)
Termination of an easement when ownership of both the dominant and servient estates is united in one person in the same duration and quality of title.

Common termination methods:

• Written release by the holder.
• Merger (consolidation of title).
• Express condition in the grant.
• Abandonment.
• Prescription by the servient owner.
• Estoppel.
• Destruction of the servient estate (in limited cases).
• Condemnation.
• End of necessity (for easements by necessity).

Release

The easement holder may execute a written release (usually a deed of release) satisfying the Statute of Frauds. Oral statements alone are not enough to extinguish a legal easement, though they may support an estoppel theory if the servient owner reasonably relies and changes position.

Merger

If one person comes to own both the dominant and servient estates in the same estate (e.g., fee simple in both), the easement merges into title and is extinguished. Later separation of the parcels does not revive it; a new easement must be created.

Points to watch:

• Partial merger (e.g., acquiring only part of the servient land, or acquiring a lesser estate such as a leasehold) is insufficient.
• Merger does not occur if the unified interests are not of the same duration or quality (e.g., life estate over fee simple).

Express condition

If the original grant states that the easement will end upon a stated condition (e.g., “for so long as the land is used for residential purposes” or “until the new county road opens”), satisfaction of that condition ends the easement automatically.

Abandonment

Abandonment requires:

• Nonuse, plus
• Clear, physical acts by the holder manifesting intent to relinquish the easement.

Examples of abandonment:

• The easement holder builds a new driveway over a different route and permanently blocks the original easement path with a wall or structure, indicating an intent never to use it again.
• The holder removes a bridge or culvert essential to using the easement and replaces it with a permanent obstruction.

Mere nonuse, no matter how long, is not enough. This is a frequent MBE trap: “nonuse for 20 years” by itself does not terminate an easement unless coupled with conduct evidencing intent to abandon.

Prescription by servient owner

The servient owner can terminate an easement by engaging in conduct that:

• Interferes with the easement,
• Is adverse to the easement holder (without permission), and
• Continues for the statutory limitations period.

Example: The servient owner erects and maintains a locked fence across the easement path and successfully keeps the easement holder from using it for the statutory period. The easement is then extinguished by prescription.

Note that unsuccessful obstruction (e.g., erecting a gate that the holder regularly opens) does not defeat the easement.

Estoppel

If:

• The easement holder acts in a way that reasonably appears to relinquish the easement (e.g., states that the right will no longer be used, or encourages construction over the easement route), and
• The servient owner reasonably and detrimentally relies on that conduct (e.g., builds a substantial structure on the easement route),

the holder may be estopped from later asserting the easement, effectively terminating it.

Estoppel is flexible and fact-sensitive. On the MBE, look for (i) a representation or conduct suggesting no further use, and (ii) substantial reliance expenditures by the servient owner.

Destruction and condemnation

Destruction of the servient estate (without fault of the servient owner) may terminate an easement tied to a particular physical feature. For example, if an easement is limited to use of a specific building that burns down, the easement may end unless the parties clearly intended it to survive.

If the government condemns the servient land, the easement is terminated, and the easement holder is entitled to part of the condemnation award reflecting the value of the lost easement.

End of necessity

Easements by necessity automatically end when the original necessity ceases (e.g., when a landlocked owner obtains another legal access road). Other types of easements do not end merely because they are no longer needed or convenient.

Exam Warning

On the MBE, mere nonuse of an easement does not terminate it. There must be clear evidence of intent to abandon (acts inconsistent with continued use), or for adverse acts by the servient owner over the statutory period.

Profits

A profit is the right to enter another's land and remove natural resources (e.g., minerals, timber, soil, fish).

Key Term: Profit
A nonpossessory right to enter another's land and take part of the land or its resources.

A profit is similar to an easement, but the key feature is the right to take something from the land. Profits can be:

• Appurtenant (tied to a dominant estate), or
• In gross (personal or commercial, without a dominant estate; most profits are in gross).

The rules for creation, transfer, and termination are largely the same as for easements:

• Creation: by express grant, implication (including from longstanding resource extraction), or prescription.
• Transfer: usually freely assignable, especially commercial profits in gross.
• Termination: by release, merger, abandonment, prescription, or satisfaction of a condition.

Key Term: Surcharge (of a profit)
Excessive use of a profit that unreasonably burdens the servient estate and may justify termination or limitation of the profit.

Because a profit involves taking something of value, overuse is a particular concern. If the holder of a profit (especially a profit in gross held by a commercial operator) uses it in a way that unreasonably increases the burden on the servient land—e.g., taking far more gravel than contemplated, or using heavy machinery that damages the land—a court may:

• Limit the scope or frequency of use, or
• Terminate the profit for surcharge.

Condemnation: Profits are compensable property interests. If eminent domain extinguishes a profit held indefinitely or for life, the profit holder shares in the condemnation award in proportion to the value of the profit.

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.

Characteristics:

• It is not an interest in land.
• It is usually created informally (orally or by conduct).
• It is freely revocable at will by the licensor, unless made irrevocable in limited circumstances.
• It is generally not transferable or assignable (any attempted transfer usually terminates the license).

Common examples:

• A theater or sports ticket;
• A customer’s right to enter a store during business hours;
• Permission to enter land to repair or retrieve a chattel;
• Permission to hunt or fish, if no interest in the resource is granted.

When a landowner says informally, “You can always cross my field,” without a written instrument, that permission is a license, not an easement.

Licenses and the Statute of Frauds

Attempts to create an easement orally (without a writing satisfying the Statute of Frauds) typically create only a license. For example, “You may cross my land whenever you like” given orally is a license, not an easement, unless some exception applies.

An oral “easement” can, however, become an irrevocable license where there is substantial reliance, as discussed below.

Licenses coupled with an interest

Key Term: License coupled with an interest
A license that accompanies a separate interest in personal property located on the licensor’s land and is irrevocable as long as the interest exists.

Example: Buyer purchases timber on Seller’s land. Buyer has an irrevocable license to enter the land to cut and remove the timber. The license is “coupled” with the buyer’s ownership of the timber; revoking the license would destroy the value of that interest.

Licenses coupled with an interest are typically irrevocable for as long as reasonably necessary for the interest to be realized.

Irrevocable licenses (license by estoppel)

Sometimes a license becomes irrevocable under the doctrine of estoppel.

Key Term: License by estoppel (easement by estoppel)
A license that becomes irrevocable when the licensee reasonably relies on it by making substantial expenditures or improvements, so that revocation would be inequitable.

Where:

• The landowner gives permission to use the land (often orally or informally).
• The licensee reasonably and foreseeably relies by making substantial improvements or expenditures (e.g., building a driveway, dock, or irrigation system).
• It would be unjust to allow revocation.

The result is an irrevocable license (often treated functionally like an easement) for as long as necessary to protect the reliance interest. Many courts call this “easement by estoppel,” but on the MBE, answers typically describe it as license by estoppel or irrevocable license.

Irrevocable licenses are sometimes limited in duration: some courts maintain them only for a “reasonable time” or until the improvements have yielded their expected value.

Worked Example 1.1

A grants B a written right to cross A's land to reach B's home. The deed states, “Grantor grants to Grantee, her heirs and assigns, a right-of-way over the existing lane to reach Grantee’s residence.” B later 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, and the grant runs to B’s “heirs and assigns.” Easements appurtenant run with the dominant land and automatically transfer to future owners of that land. C, as B’s successor to the dominant estate, may use the easement.

Worked Example 1.2

O owns a large tract and uses a gravel drive to reach the back half. O then 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 the drive over O's land for years.

Answer:
B may have an easement by necessity if, at severance, the back parcel was landlocked and strict necessity existed. B may also have an easement by implication from prior use if the driveway use was apparent, continuous, and reasonably necessary for the enjoyment of B’s parcel. If B's use of the driveway was open, adverse, and continuous for the statutory period, B may additionally claim a prescriptive easement. Because there was common ownership at severance, easements by implication and by necessity are both plausible on these facts.

Worked Example 1.3

A landowner orally allows a neighbor to use his pond for fishing. The neighbor spends money building a dock and landscaping a path down to the water. Later, the landowner tries to revoke permission and fence off access.

Answer:
Initially, the neighbor had only a revocable license because the permission was oral and did not satisfy the Statute of Frauds. However, the neighbor reasonably and substantially relied by building a dock and improving access. Under license-by-estoppel principles, the owner is estopped from revoking the permission, and the neighbor has an irrevocable license (often treated like an easement by estoppel) to use the pond for a period sufficient to protect the reliance interest.

Worked Example 1.4

Owner of parcel D (dominant) has an express right-of-way over parcel S (servient) “for access to a single-family dwelling.” D is later subdivided into four residential lots, each with a house. All four lot owners begin using the easement as their only access.

Answer:
Because the easement is appurtenant, it generally benefits all portions of the subdivided dominant estate. However, use by four houses instead of one may substantially increase traffic. The key question is whether the additional use unreasonably burdens the servient estate beyond what the parties contemplated when the easement was granted. A court may permit some expansion but could limit the number of users or the type of use to prevent overburdening. It is unlikely to extinguish the easement altogether.

Worked Example 1.5

Owner O orally tells Neighbor N that N may build a driveway across O’s land to reach N’s garage. Relying on this, N constructs a paved driveway at substantial cost. After a dispute, O attempts to revoke permission and block the driveway.

Answer:
The initial permission was a revocable license because it was oral and did not satisfy the Statute of Frauds. But N reasonably and foreseeably relied by building the driveway. Under license-by-estoppel principles, O is estopped from revoking the permission. N has an irrevocable license (often described as an easement by estoppel) to continue using the driveway, typically for as long as the driveway remains reasonably useful.

Worked Example 1.6

Twenty years ago, A began using a visible footpath across B’s wooded property to reach a lake. B never objected or gave express permission. The jurisdiction has a 10-year statute of limitations. Recently, B placed a locked gate across the path and posted “No Trespassing” signs. A sues, claiming a right to continue using the path.

Answer:
A’s use was open, continuous, and without express permission for more than the 10‑year statutory period. That supports an easement by prescription. Because exclusivity is not required, the fact that others sometimes used the path as well does not defeat A’s claim. B’s new gate is inconsistent with A’s prescriptive easement and may be ordered removed or left unlocked for A’s passage.

Worked Example 1.7

O grants R “the right to remove up to 100 cords of firewood per year from Blackacre.” R later begins clear-cutting timber using heavy machinery, removing many more trees than necessary for personal firewood and causing substantial erosion. O sues to terminate R’s rights.

Answer:
R holds a profit—a right to enter and remove timber. The grant is limited to 100 cords per year. R’s clear-cutting and heavy commercial use far beyond that amount unreasonably burdens the servient estate and exceeds the scope of the grant. This constitutes a surcharge. A court may enjoin the excessive use and, in an extreme case, terminate the profit altogether for overuse.

Worked Example 1.8

A written deed states: “Owner grants to B a license to park in Owner’s driveway for 10 years.” After three years, Owner sells the property to C, who had record notice of the deed. C immediately tells B to stop parking there.

Answer:
Despite being labeled a “license,” this is a written, time-limited right to use land that looks more like an easement in gross than a bare license. However, the grant explicitly uses the term “license,” and courts often respect the parties’ characterization when the intent is clear. Most jurisdictions treat licenses as personal and non-assignable and do not allow them to bind successors as interests in land. Because the right is described as a license and benefits B personally, C is not bound absent an easement. B’s remedy is likely limited to contract damages against the original grantor, not enforcement against C.

Licenses versus Easements and Profits

Key exam distinctions:

• Interest in land:

  • Easements and profits are interests in land.
  • Licenses are not interests in land.

• Revocability:

  • Easements and profits are generally not revocable at will; they endure until terminated by recognized doctrines (merger, release, etc.).
  • Licenses are revocable at will, unless coupled with an interest or made irrevocable by estoppel.

• Transferability:

  • Easements appurtenant run with both dominant and servient estates (with notice).
  • Commercial easements in gross and profits in gross are usually transferable; purely personal easements in gross and licenses are not.

• Statute of Frauds:

  • Easements and profits with a duration of more than one year must be in writing.
  • Licenses can be created orally, and most are.

When analyzing a right to use land, ask:

• Is there a signed writing?
• Is the benefit tied to a piece of land or to a person?
• Is the right described as revocable, or obviously personal?
• Is the question about revocation or about who is bound after a conveyance?

These questions help distinguish easements, profits, and licenses quickly under exam pressure.

Summary

Easements, profits, and licenses are all nonpossessory use rights in land, but they differ in important ways.

• Easements are nonpossessory rights to use land, created by express grant, implication, necessity, or prescription. They may be appurtenant (benefiting land and running with it) or in gross (benefiting a person or entity). They are generally not revocable at will, and their scope is controlled by the language and circumstances of creation. Termination occurs through release, merger, abandonment plus conduct, adverse acts by the servient owner for the statutory period, satisfaction of conditions, destruction or condemnation of the servient estate, or the end of necessity.

• Profits allow the holder to enter land and remove resources. They are similar to easements in creation, transfer, and termination, but are uniquely vulnerable to termination or limitation by surcharge (overuse that unreasonably burdens the servient land). Profits can be appurtenant or in gross and are typically assignable, especially in commercial contexts. Profit holders share in condemnation awards when their profits are extinguished.

• Licenses are personal, revocable privileges to enter or use land. They are not interests in land, do not require a writing, and generally are non-transferable. However, licenses coupled with an interest and licenses by estoppel (where the licensee reasonably and substantially relies on the permission) may be irrevocable, functioning much like easements for as long as necessary to protect reliance. On the MBE, many “oral easement” fact patterns are best understood as licenses, potentially irrevocable by estoppel.

Being able to classify a use right correctly, identify its method of creation, determine who is bound and who benefits, and analyze whether and how it can be terminated is essential for answering MBE questions on rights in real property.

Key Point Checklist

This article has covered the following key knowledge points:

• Easements are nonpossessory rights to use land, created by express grant, implication from prior use (or plat), necessity, or prescription.
• Easements appurtenant benefit land (a dominant estate) and run automatically with that land; easements in gross benefit a person or entity and are transferable if commercial.
• The scope of an easement is governed by the language of the grant or the historical use, and may not be enlarged to unreasonably overburden the servient estate; servient owners generally cannot unilaterally relocate easement routes under traditional rules.
• Easements appurtenant run with both dominant and servient estates (with notice); commercial easements in gross and profits in gross are generally transferable and apportionable.
• Easements are terminated by written release, merger of dominant and servient estates in one owner, abandonment (nonuse plus physical acts showing intent to relinquish), adverse conduct by the servient owner for the statutory period, satisfaction of a condition, destruction or condemnation of the servient estate, or the end of necessity (for necessity easements).
• Profits allow removal of resources and largely follow easement rules but may be limited or terminated by surcharge (overuse that unreasonably burdens the servient land); profit holders share in condemnation awards when the profit is extinguished.
• Licenses are personal, revocable privileges to use land and are not interests in land, do not require a writing, and are generally non-transferable; tickets, social invitations, and permissions to enter to perform a task are classic licenses.
• Licenses can become irrevocable when coupled with an interest (e.g., the buyer’s right to enter and remove purchased timber) or when the licensee reasonably and substantially relies on the permission (license by estoppel/easement by estoppel).
• On the MBE, distinguishing easements, profits, and licenses requires attention to the creation method, connection to land or person, transferability, revocability, and the effect of the recording acts and Statute of Frauds.
• Mere nonuse does not terminate an easement; look for conduct by the easement holder indicating intent to abandon, or for adverse acts by the servient owner over the statutory period.

Key Terms and Concepts

• Easement
• Servient estate
• Dominant estate
• Affirmative easement
• Negative easement
• Easement appurtenant
• Easement in gross
• Easement by implication (from prior use)
• Easement by necessity
• Easement by prescription
• Apportionment (of easement)
• Merger (of easement)
• Surcharge (of a profit)
• Profit
• License
• License coupled with an interest
• License by estoppel (easement by estoppel)