Property Law: Express Easements

An easement exists only if the parties do something to create one. According to property law, parties can create an easement in a number of ways, including by express agreement, implying an easement by their conduct, and acquiring an easement by prescription.

To create an express easement, the parties can simply agree to create an easement. The statute of frauds generally requires written evidence of the easement; however, an agreement to create an easement may be enforceable under the doctrines of estoppel and part performance despite noncompliance with the statute of frauds.

The grantor, or servient tenant, can simply sign an easement agreement that conveys the easement to the grantee, the dominant tenant.

The parties also may create an easement in a deed that conveys the dominant or servient land. A deed may grant an easement to the grantee along with the land that it benefits, or the deed may reserve to the grantor an easement over the granted land.

Some courts say that a deed can’t reserve an easement for someone other than the grantor. So if the grantor wants to do so, he must reserve the easement for himself and then separately convey the reserved easement to the intended beneficiary.

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