Shawn has a masters of public administration, JD, and a BA in political science.
Creation of an Easement
You may recall that an easement is a non-possessory interest in real estate that permits its holder to make a specific use of the property owned by another. Most easements are created by an express easement. However, easements that can be created without a signed writing include easements by implication, easements by necessity, easement by prescription, and easement by estoppel.
Easement by Implication
Sometimes the law will imply that an easement was created based on the surrounding circumstances. An easement by implication may be created when:
- A single parcel of land is divided into two or more parcels, with parcels going to different owners
- The use underlying the easement must have existed before the division of the property and that use have been both apparent and continuous before the division;,and
- The use must be reasonably necessary for the use and enjoyment of the parcel
Let's examine these elements in more detail:
First, a single parcel of land must be divided up, such as a farmer selling ten of his twenty acres to a real estate developer subdividing ten acres of land into 40 quarter-acre lots to be sold to 40 different persons. Since there must be servient estate (the property being burdened by the easement) and a dominant estate (the property benefiting from the easement), an easement in gross cannot be created by implication. This is because an easement in gross is a personal right rather than a right attached to a parcel of property.
Second, the specific use underlying the claimed easement must have existed prior the division of the single parcel into two or more separate parcels. Moreover, this prior use must have been both continuous and apparent prior to the division of the property. Let's say that a farmer subdivides his 50-acre farm and sells five acres as a hobby farm. The parcel sold includes a barn. In the past, the farmer accessed the barn by private road. The gravel road is actually on the land the farmer retained, but if all the other requirements are met, there is an implied easement in favor of the buyer's hobby farm to use the gravel road to access the barn because of the prior use. This is the case even though there may have been another way for the owner to access the barn. Note: some courts may not require a prior use before division of the property, so check your specific state law.
Third, most courts require that the easement must be reasonably necessary for the use and enjoyment of the property. Absolute necessity is not required if the easement benefits the grantee's (buyer's) property. In our example, the buyer of the hobby farm didn't absolutely need an easement to make use of the property and barn, but he can argue it's reasonably necessary. Some courts are harsher when an easement is reserved and require 'strict necessity.' A reservation occurs when you transfer property to another but retain an easement over it for yourself. If our farmer in the above example kept the property with the barn and sold the other property instead, he may have to prove that an easement to use the gravel road is an absolute (or 'strict') necessity for the use of his property.
Sometimes an implied easement may be based on a subdivision plat. A plat is a map of a subdivision that shows the lots, streets, and other spaces. If the streets in a subdivision are private, the mere fact that private streets are adjacent to the residential lot implies that each adjacent lot (or even all the lots in the subdivision) has an easement to use the street. The same may hold true for parks and playgrounds in the subdivision.
Easement by Necessity
An easement by necessity looks like an easement by implication with a couple of important distinctions. It involves two parcels of properties - one to be the dominant estate and one to be the servient estate. Unlike an easement by implication, an easement by necessity requires that the use be absolutely necessary for the use of the dominant estate.
The most common example of an easement by necessity is a landlocked parcel. A landlocked parcel is one in which a person cannot reach a public road from the land unless she crosses over another person's land. Since an easement to cross over another person's property to get access to a public road is the only way one can enter or leave the property, an easement by necessity will be recognized.
Easement by Prescription
Sometimes an easement may by created when one makes a specific use of another person's land long enough, without permission, which is an easement by prescription. In order for someone to obtain an easement by prescription, the following requirements are necessary:
- The use of the property must be made without the owner's permission
- The use must be open and notorious, which means that the owner of the property knows, or should know, that a non-permissive use of her property is being made
- The use is continuous and uninterrupted; an occasional use is not sufficient
- These elements must exist during the entire period of time required by statute, which is often 20 years but as few as five, depending upon the state and circumstances.
For example, Nathan owns a parcel of land that abuts a lake. Atticus lives across the street and cuts across Nathan's land without permission to reach the lake all year long. We can reasonably say that Atticus's use is adverse, open, notorious, continuous, and uninterrupted. So if things continue this way for the relevant statutory period, Atticus will obtain an easement by prescription to use Nathan's land to access the lake.
Easement by Estoppel
Sometimes an easement by estoppel is created, which is an equitable doctrine that relies on concepts of fairness to prevent an injustice. An easement by estoppel may be created if the owner of servient estate engages in conduct that would make a reasonable person believe that an easement has been given and that the person relies upon that reasonable belief in such a manner that denying the easement would be unjust.
For example, if you tell your neighbor that she can build a $50,000 garage even though the corner of it will encroach on your property, but change your mind after the garage has been built and demand that encroachment be removed, a court may find an easement by estoppel because your neighbor reasonably relied upon your consent to her detriment even though the easement was not in writing, and therefore, is generally unenforceable under the statute of frauds.
Easements may sometimes be created without the use of a signed writing evidencing them. Easements by implication occur when a property is divided and the facts and circumstance indicate a prior use that is reasonably necessary. An easement by necessity is similar to an implied easement; however, it doesn't require a prior use, but the easement must be an absolute necessity. An easement by prescription occurs when your use of the property of another is adverse, open, and notorious and continuous and uninterrupted for the statutory period of time. Finally, an easement by estoppel is created if the owner of the servient estate engages in conduct that makes you reasonably believe you have an easement and you rely on that to your detriment.
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