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Real Estate and Business Law


Easements: Express, Implied and Prescriptive…Oh My

An easement is the legal term for the right to use someone else’s land for a specific purpose. For example, a neighbor may grant an easement to his or her neighbor for use of a walking path. The best way to be sure each property owner’s rights are protected with regard to the easement is to sign a written easement agreement and record the agreement with the county recorders office.

Use of an Express Easement

An easement created by express grant or reservation, such as one that is written, signed and recorded as described above, is limited to the specified purpose or use set forth in the written agreement. Therefore, the easement for “use of a walking path” may be limited to walking. If the user of the easement then decided to use the path for riding a motorcycle that use would not be permitted under the easement. The owner of the property that granted the easement has a right to enforce the specific use identified in the easement. Importantly, although the user of the easement cannot make use of an easement in excess of the specified purpose, he or she receives by implication the right to do all things reasonably necessary for its use, including the right to enter on the property to repair and maintain the walking path if reasonably necessary.

When the written agreement grants an easement in general terms, without specifying or limiting the extent of its use, the permissible use is determined by the intention of the parties and the purpose of the grant. Once the easement has been used for a reasonable time, the extent of its use is established by the past use.

Implied Easements

Implied easements occur when there is nothing in writing, but one property owner gives another the reason to believe that it has granted an easement. To be enforceable, there usually needs to be some sort of action that shows that the parties intended for there to be an easement. With regard to the walking path example above, if the user of the easement builds a new front porch based on the use of that walking path and there is now no other way to reach the front door, other than that walking path, an easement could be implied by the actions, even without a written agreement. It is easy to see how this can get sticky and difficult to prove and enforce in court.

Prescriptive Easements

A prescriptive easement is a right to use land that is acquired by use over time. There is a four part legal test to determine whether a prescriptive easement has been created:

1. Use that is actual and open
2. Use that is adverse to the owner (w/o permission)
3. Five years of continuous use
4. Must not exclude use by the owner

If one was to obtain a prescriptive easement for the use of a neighboring property owners walking path the user would need to show that the (1) the user actually used the walking path and people could see him using (2) the property owner did not give permission to use the walking path (3) the use used the walking path continually for a five year period and (4) the property owner was not excluded from using the walking path.

This is only an example. Prescriptive easements are not easily created, but an unwary property owner may create a prescriptive easement by ignoring an unpermitted use and not enforcing his or her property rights with respect to that unpermitted use.

If you wish to create an express easement and grant use to another, you are in an easement dispute, or you want to enforce rights pursuant to an express, implied or prescriptive easement an attorney can help you protect your property rights.

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