3 Ways Easements Are Created

Easements are interests in property that are not owned or possessed by the owner. If you're the holder of an easement, you have the right to use the property, but you don't have the right to occupy someone else's land. If your land is next to the land where the easement is created, you own the dominant estate. It is possible to hold an estate "in gross," which means you don't have a dominant estate. The land with the easement on it is the servient estate. Here are 3 ways that easements are created.

1 - By a Written Document

The most common way to create an easement is by a written document. Oral easements are not often upheld in courts, and a judge is more likely to call it a license due to fraud laws. As a result, valid easements must be in writing if it's for more than one year, and signed by the grantor. Some of the written instruments are:

  • A contract
  • A deed
  • A will

When an easement is in writing it's considered an express grant. It's possible to create an easement by reservation, another form of express grant, by reserving an easement in a land that the owner grants to a buyer.

2 - By Implication Based on the Circumstances

Courts may imply easements based on the circumstances, including prior use. For example, a court may weigh the use of an easement that already existed prior to the sale of property, and rule in favor of an easement created by implication. One type of implied easement that is popular in courts is easements by necessity.  It's commonly used for landlocked property, where the easement is necessary to gain access to a road. Establishing prior use is not necessary in those cases. The court will create an easement by necessity by operation of law. The other type of implied easement is quasi-easements, where the owner used the easement for the benefit of the portion of land that he sells.

3 - By Prescription

It's possible to create easements by taking over a portion of land that doesn't belong to you. A court will recognize the easement if these requirements are met:

  • Use of the easement is open and can be easily discovered upon inspection
  • The owner of the land does not grant permission to use the easement
  • Use of the easement is uninterrupted and continuous for a required number of years according to state statutes

Easement by prescription is similar to obtaining ownership by adverse possession. States vary on the statutory period, which is the length of time the "trespass" has to occur before an easement by prescription is created. It's important to protect yourself from prescription easements if you’re a landowner, by granting a license and posting signs around the "easement" that states that you're granting a license which can be revoked at any time.

These are the main ways in which easements are created, but there are variations on each one based on individual cases. The landowner and easement holder has to take the proper legal steps to protect their interests, and it may be helpful to consult with a real estate lawyer to protect those rights.


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