Creating Easements By Express Grant or Reservation

Instructor: Shawn Grimsley

Shawn has a masters of public administration, JD, and a BA in political science.

The most common (and perhaps the best) way to create an easement is by express grant or reservation. In this lesson, you'll learn how to do so while avoiding pitfalls that may invalidate a grant or reservation of the easement.

Easements - A Refresher

Lisa has a problem. She's building a new two-stall garage and driveway. However, Lisa failed to get the property properly surveyed and assumed that her lot was perfectly square. The lot actually narrows slightly from the backyard to the street and Lisa did not compensate for this narrowing when pouring the new driveway. Marcie, her neighbor, informs Lisa that her new driveway is encroaching on her property about six inches for the last five feet of the driveway before it hits the road.

Lisa's sister is an attorney and suggests that she offer to purchase an easement from Marcie to solve the issue. An easement is a nonpossessory right to make a specific use of the land of another. Marcie agrees to grant an easement to Lisa to use the relevant portion of her land for her driveway in consideration of a payment of $1,000. This will be an easement appurtenant where the right of use will attach to Lisa's land rather than to herself personally. This ensures that future owners of Lisa's property will benefit from the easement as well.

Creation by Express Grant

Marcie will create the easement by express grant. You can make an express grant of an easement by deed or will. Marcie, of course, will use a deed in this situation. At a minimum, the deed will:

  • Identify the grantor, the owner of the property being burdened by the easement (i.e., the owner of the servient estate)
  • Identify the grantee, the owner of the property benefiting from the easement (i.e., the owner of the dominant estate)
  • Include the legal description of the servient estate
  • Include the legal description of the dominant estate (unless the grant is for an easement in gross)
  • Include the description of the area of the servient estate subject to the easement (precision is important and drawings and even a survey may be advisable)
  • Include the description of the use being granted by the easement (it's a good idea to specify whether the easement is appurtenant or in gross)
  • Be signed by the grantor (i.e., the owner of the servient estate being burdened by the easement)

In our example, the deed will identify Marcie as the grantor and Lisa as the grantee. The deed will provide the legal description for both Lisa and Marcie's properties as well as the legal description of the strip of land being burdened by the easement (i.e., the driveway). Marcie will sign the deed as grantor.

The provisions of an easement can be far more complicated than the one we just outlined for Lisa and Marcie, which is often the case with easements used for commercial purposes. A more complicated grant of an easement may address matters such as:

  • Apportionment of maintenance, tax, and insurance obligations
  • Whether the easement can be assigned or divided if an easement in gross is granted
  • Issues of liability and indemnification should an injury occur on the easement
  • Conditions terminating the easement

Creation by Express Reservation

Let's switch gears for a moment and assume you own a nice piece of lakefront property. You don't have enough time to make good use of the property, so you decide to sell it. However, you really like to kayak and fish and don't want to give up your access. What can you do? You can reserve an easement in gross when you sell the property entitling you to personally use the property for fishing and launching your kayak.

A reservation of an easement takes place when the grantor conveys (i.e., transfers by sale or otherwise) a parcel of property to another but reserves to herself an easement over the property for some use. Thus, in our example, when you convey the lake property to a buyer, you can include a reservation of an easement in gross on the deed serving the right to use the property for fishing and kayaking. You're not really granting an easement to yourself, because you already have the right before the conveyance; instead you are keeping (or reserving) a use you already had at the time you transfer the property.

An express reservation will have the same components as when an easement is expressly granted by deed. However, in our example, since we are dealing with an easement in gross, there is no dominant property to identify, just the person entitled to the use (because an easement in gross is held as a personal right).

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