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Interests in Real Estate: Easements: Creation, Scope and Termination

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            An easement is defined as the right of one person to exercise limited ownership or possession of the property of another. Easements are a nonpossessory property interest held by another party in the land of another.[1]

Easements can create contentious issues between neighboring landowners but are also essential for the benefits they provide. For example, landowners use conservation easements to ensure that land will be preserved and wildlife will be protected.[2] Neighbors can use easements to foster cooperation and ease accessibility to land to ensure that a parcel of land is fully utilized.  A public utility or a government agency may use an easement to get permission to build overhead or underground utility lines to benefit a neighborhood.

We will first present the various types of easements and discuss their scope and how they affect different property owners. Second, we will look at how easements are created. Finally, we will analyze methods of easement termination and its impacts.

Types of Easements

Easements can be affirmative easements, which allow the easement holder, who is someone other than the landowner, to use the property of another for a limited purpose,[3] or they can be negative easements, which entitles the easement holder to compel the possessor of another property to refrain from taking part in certain activities. Conservation easements, for example, are negative easements, as they are voluntary restrictions on private land that prevent landowners from taking part in certain commercial activities to preserve the land’s natural state.[4]

Both affirmative and negative easements can further be divided into two categories. The first category is an easement appurtenant. This easement is held by a person who can make physical use of and enjoy another’s parcel of land. For an easement appurtenant to exist, two different parties must own two different parcels of land.[5] The dominant tenement is the land owned by the holder of the easement and the servient tenement is the parcel of land in which the easement is held. An easement appurtenant is attached to the land, passes with the land, and benefits the land. Courts will construe, whenever they can, an easement to be an easement appurtenant[6] because easements appurtenant are more flexible and usable.

The second category is an easement in gross. An easement in gross is an interest in, or right to use, the land of another that is personal and typically ends at the easement holder’s death.[7] An example of an easement in gross occurs when a landowner grants another the right to come upon his land to fish and hunt. Once the grantor of this easement passes away or sells the property to another owner, the other party no longer has the right to use the land for these recreational purposes.


Creating Easements and Their Scopes

            Easements are created in four ways: express grant, express reservation, by implication, and by prescription.

Express Grant

            The simplest way to create an easement is by express grant. This occurs when a party burdens his land with an easement and conveys that easement to another party.[8] Under the Statute of Frauds, when an easement is created by express grant and is to last longer than one year, it must be in writing and signed by the owner of the land that will be burdened by the easement. The owner of this land is referred to as the servient tenement holder.

            The scope of an easement over the property of another by an express grant is limited and confined to the terms and purposes of that express grant.[9] In one notable case, a property owner, Cyrus expressly granted another property owner, Ratcliff, access across his rear property to access a roadway.[10] The court held that since the easement expressly dictated and specifically mentioned the use of Cyrus’ “rear property,” it would be impermissible to extend the scope of the easement and alter the easement’s language. Subsequently, Ratcliff could not get access to the roadway across Cyrus’ “front property.”

Express Reservation

The second way to create an easement is through express reservation. Here, a grantor conveys title to the land to another person but retains an easement to use the land for a special purpose.

For example, Steven decides to sell his 30-acre commercial alfalfa farm to Robert and then live on a neighboring parcel to the east of the farm. If Steven includes a clause in the land sales contract, reserving a half-acre parcel on the alfalfa farm’s eastern edge for his own continued personal alfalfa farming, Steven has created an easement through express reservation. Note that a reservation of easement can only be made in favor of the party transferring the land (Steven, in this case). Courts may, in fact, void any attempt by a grantor to reserve an easement for anyone other than the grantor himself.[11]  

Easement by Implication

The third method to create an easement is by implication. Even if an easement is not created expressly in writing, it may arise by operation of law. There are two categories of easements by implication.

The first category is an easement by necessity. An easement by necessity may, for example, involve an owner who conveys a parcel of land that is landlocked.[12] If the landlocked parcel has no means of ingress or egress except over lands retained by the conveyor or in the possession of another property owner, the right of the purchaser to use surrounding lands to access her parcel is implied.[13]

The second category of implied easements are easements implied from existing use. An easement is implied from existing use if

·         the use is apparent and continuous;

·         it is reasonably necessary for the enjoyment of the parcel benefiting from the easement; and

·         a court determines that the parties wanted the use to continue after the division of a parcel.

So, for example, if two businesses were run on a single parcel with one shared parking lot and two partners who ran both businesses decided to split the parcel, but the shared parking lot was entirely on one side, the court could reasonably infer that the other property owner receives an implied easement to allow her customers to park in the previously shared parking lot.

The scope of an easement by implication can expand with the easement holder’s use. In one case, a court held that when an easement arises out of necessity, the easement may be “necessary for all purposes to which the land is adapted.”[14] If the necessity increases and remains reasonable, then a court will likely grant the expansion of the implied easement’s scope.[15]

Going back to the parking lot example, if the businesses are doing well and the owner of the parcel in which the parking lot since decides to expand the parking lot, a court might likewise infer that the other parcel owner’s right to allow her customers to park in the parking lot are expanded to its new section as well.

Easement by Prescription

The fourth approach to easement creation is creation through prescription. Easements created by prescription are analogous to land acquired by adverse possession.[16] This allows someone to acquire an interest in land merely by possessing or using it for a required period of time. An easement by prescription must have the following four elements:

·         Open and notorious usage;

·         The usage must be “adverse” and without the land owner’s permission;

·         The usage must be continuous and uninterrupted; and

·         The usage must be “hostile” and under claim of right, which means that the user cannot, for example, either with the express permission of the owner or under a lease agreement with the owner.[17]

A recent example of a court granting a prescriptive easement took place in Helena, Montana.[18] There, Judge Sam Haddon of the United States District Court for the District of Montana found that the United States Forest Service had acquired a prescriptive easement for a trail running through the front yard of an 80-acre property owned by a landowner because the use was open (the Forest Service marked trails from 1940 to the present day), continuous and uninterrupted (the Forest Service had been using and maintaining the trail from at least 1959 onwards), and adverse (the landowner did not specifically permit the Forest Service to mark and upkeep trails).[19]   

Termination of Easements

            Easements can be terminated via a variety of methods. The first and easiest is expiration, when the easement terminates once the time period for the easement’s existence lapses.

The second method of termination is unity of ownership, also known as the merger doctrine. Under this doctrine, when the dominant and servient estates come under common ownership and possession, the easement terminates.[20]

Third, an easement can terminate via release where the holder of the easement provides the holder of the servient tenement with a deed of release. To be enforceable, a deed of release for an easement must include the names of the grantor and grantee, the date of execution, a description of the land with the easement, and the operative release language (such as “the easement is hereby released”).

The fourth way to extinguish an easement is through abandonment. Abandonment requires physical action and clear intent by the easement holder to permanently abandon the easement. This can be implied by conduct. For example, if someone has an easement to use a shortcut over someone else’s property but builds a wall that blocks off the path over which he has the easement, he could be said to have abandoned the easement.

A fifth process for termination is peculiar to an easement by necessity. Such an easement will terminate once the necessity ends. Let’s assume that Jane lives on a parcel of land that is blocked on all sides without access to the single major roadway servicing her neighborhood. An easement by necessity arises to allow her to cross one of his neighbor’s parcels of land to access the major roadway. This is because Jane has no practical way to access the roadway. Years after the easement by necessity arises, the municipality builds a new roadway that Jane can access more easily. Once the new roadway can be easily used and accessed, the easement by necessity terminates because Jane’s easement ceases to be necessary.

Condemnation (which means government takeover) of the servient estate and involuntary destruction of the servient estate also extinguish all easements. A 1918 case illustrated this latter method of easement termination. A building owner granted a right-of-way easement over a stairway to his neighbor in an adjoining building. A month later, the building caught fire due to an electrical malfunction and was destroyed. The building owner rebuilt the building, but decided not to rebuild the stairway. The court held that the easement was terminated when the building caught on the fire and the building owner was not obligated to rebuild the stairway for the neighbor.[21]

Easements are a critical component of real estate law. Understanding the basics of their operation can help property owners better structure their requests to use the land of another, even if for a short-term or limited purpose. 


[1] Stephen Siegel, A Student’s Guide to Easements, Real Covenants, and Equitable Servitudes, (2012).

[2] “Easements-Benefits for Landowners,” Land Trust Alliance, https://www.landtrustalliance.org/what-you-can-do/conserve-your-land/benefits-landowners.

[3] Jessica Lippman, Exacted Conservation Easements: The Hard Case of Endangered Species Protection, 19 J. Envtl. L. & Litig. 293, (2004).

[4] Karen A. Jordan, Perpetual Conservation: Accomplishing the Goal Through Preemptive Federal Easement Programs, 43 Case W. Res. L. Rev. 401, 403 (1993).

[5] James A. Webster Jr., Webster's Real Estate Law in North Carolina: Possessory Estates and Present Interests in Real Property 15-1 (5th ed. 1999).

[6] Weber v. Dockray, 64 A.2d at 633.

[7] Shingleton v. State, 260 N.C. 451, 454, 133 S.E.2d 183, 185 (1963).

[8] O'Connell v. Larkin, 532 A.2d 1039, 1042 (Me. 1987).

[9] Farley v. Farley, 600 S.E.2d 177, 180 (W. Va. 2004).

[10] Ratcliff v. Cyrus, 209 W. Va. 166, 544 S.E.2d 93, 2001 W. Va. LEXIS 7 (W. Va. Feb. 23, 2001)

[11] Glasgow v. Glasgow, 221 S.C. 322, 70 S.E.2d 432 (1952).

[12] 4-34 Powell on Real Property § 34.07 (2017).

[13] Rozelle v. Watts, 106 Cal. App. 2d 185, 234 P.2d 724 (1951).

[14] Whittier v. Winkley 62 N.H. 338 (1882).

[15] Michael V. Hernandez, Restating Implied, Prescriptive, and Statutory Easements, 40 Real Prop. Prob. & Tr. J. 75, 80 & n.21 (2005).

[16] John W. Fisher, A Survey of the Law of Easements in West Virginia, 112 W. Va. L. Rev. 637, (2010).

[17] Donald Morgan, Balancing Interests: How The Prescriptive Easement Doctrine Can Continue To Efficiently Support Public Policy, 50 Wake Forest L. Rev. 1253, (2015).

[18] Terry Anderson, “Property rights, access and neighborliness,” Helena Independent Record, December 13, 2016, http://helenair.com/news/opinion/guest/property-rights-access-and-neighborliness/article_caeb227e-fa4c-5d40-a615-3ee4623f2fc6.html.

[19] Wonder Ranch, LLC v. United States, 2016 U.S. Dist. LEXIS 146810 (D. Mont. Oct. 24, 2016).

[20] Knud E. Hermasen & Donald R. Richards, Maine Roads and Easements, 48 Me. L. Rev. 197, 268, (1996).

[21] Cohen v. Adolph Kutner Co., 177 Cal. 592, 171 P. 424, 1918 Cal. LEXIS 647 (Cal. 1918)