Creation of Easements

In a recent post, I outlined the different types of easements that show up on the bar exam. But the first part of any easement analysis will be to determine whether a valid easement has been created. There are multiple ways in which that can happen, and the most straight-forward way is by grant. 

To grant an easement, that easement must be memorialized in writing and signed by the holder of the servient tenement (the land burdened by the easement) unless its duration is brief enough to be outside of the Statute of Frauds. 

A writing is not, however, required to create an easement by implication (an implied easement). Rather, implied easements are created by operation of law, and can take many forms. The first form is known as an easement implied from preexisting use (sometimes referred to as a quasi easement). Here, one person owns two lots. The person who owns both lots sells one of the lots without any mention as to whether the buyer will have an easement over the other lot. The court will imply an easement for the buyer to use the other lot if the previous use of the other lot was apparent to the buyer when the buyer purchased the land from the seller, and if it would have been reasonable for the buyer to expect that the use of both lots would continue after the sale of one of the lots to buyer. 

There are also implied easements without preexisting use. In one scenario, lots are sold in a subdivision with reference to a recorded plat or map that shows streets leading to the lots. Buyers of those lots have an implied easement to use the streets to access those lots. In another scenario, anyone with a profit a prendre (the right to take resources such as minerals or timber or etc. from the land of another) will have an implied easement to pass over the surface of that land in order to extract those resources. 

Another type of implied easement, and one that is often tested, is called an easement by necessity. This easement will be implied if a landowner (the grantor) conveys a portion of land and the buyer has no way out from the purchased land except over some part of the grantor's remaining land. In other words, the buyer is landlocked. 

If you understand well adverse possession, you'll also understand the next type of implied easement called an easement by prescription. Just as with adverse possession, to acquire a prescriptive easement requires continuous and uninterrupted use of the easement for the statutory period, open and notorious use of the easement, actual use, and hostile use. You might notice that the difference between a prescriptive easement and adverse possession is that the use need not be exclusive to acquire a prescriptive easement. To be sure, an easement will never be exclusive since by its nature someone is merely using the land of another. Title is not acquired by a prescriptive easement as it is by adverse passion. What's gained is the right to continue to use the property of another person. 

Lastly, once an easement has been created, the scope of the easement must be determined. That's easy enough if the easement was created by grant: the scope is determined by the terms of the grant. If an easement is created by implication, then scope will be determined by the conditions that created it. A standard of reasonableness is a good rule of thumb.

The landowner burdened by the easement may select the location of the easement as long as that selection is reasonable. If there are no specific limitations selected, courts assume that the easement was intended to meet both present and future needs of the person benefited by the easement. 

The landowner burdened by the easement generally may use the burdened land in any manner, provided that such use does not interfere with the easement. The person benefited by the easement must make repairs to the easement if that person is the sole user of the easement. If both the benefited person and landowner burdened by the easement are both users of the easement, court will apportion repair costs among them.