An easement is a legal right for a person to use the real property of another person. Often an easement could be for a driveway and utilities, but it can also be for a well, septic drain fields, water lines, etc. Most easements are voluntarily created, but there are some situations in which an easement can be created later on after neighbors have years of history without a formal easement.
Express Easement. An express easement is the most common type of easement documents. It is a stand-alone document that grants an easement over real property. The “Grantor” is the owner of the burdened property and the “Grantee” is the owner of the benefitted property. The easement will state where it grants rights to the Grantee, what rights are granted and for how long the rights will exist. For example, Grantor grants to Grantee a perpetual easement for ingress, egress and utilities over the existing driveway on the Grantor’s property. The easement typically states that it “runs with the land,” which means it will be binding on future owners of the Grantor’s property and for the benefit of future owners of the Grantee’s property. The documents is signed with a notary and recorded. A recorded express easement can be found by searching for a property’s tax parcel number on the county Auditor’s recorded documents website.
Easement on Plat. Another place an easement may be created is by dedication of an easement on a plat. The plat might state that all owners have a right to use some lot that is owned by another owner in the plat. These easements are typically shorter and have less description about the use, maintenance, cost-sharing, etc. Plats are also recorded with the county Auditor. The recording number or bool/page citation are often part of the legal description on the most recent recorded deed.
Easement by Deed. An easement can be created by a deed. For example, the deed for Lot 1 could state that the transfer is “subject to a driveway easement for Lot 2.” The deed for Lot 2 may or may not state that it is “together with a driveway easement over lot 1,” but the deed does not need to state that it has an easement for it to continue to remain in effect. Easements by reservation in a deed are problematic because it is possible for the language to accidentally be removed from a deed at a subsequent transfer. This does not eliminate the easement, but it does mean that a seller purportedly transferred more than they owned. The deeds that create these easements can also be found in the recorded documents at the county Auditor.
Non-Consensual Easements. Easements can be created by a court in certain circumstances. One example is if a person subdivided their property and then sold the front lot without reserving an easement for access to the back lot. The owner of the back lot can sue the owner of the front lot for an easement by necessity. A prescriptive easement can also be created by use over a 10 year period without permission of the burdened property. These cases are very fact specific, but generally, if someone has used another person’s property without permission for 10 years, they likely will be able to take a right to continue to do so. There is also a process for forcing a neighbor to sell you and easement if no other legal theory exists to take one from the neighbor. These easements are created by the background facts of a case, but are confirmed by a judge in a court order. Those orders are often recorded to put future owners and title companies on notice.
Conclusion. There are many ways for easements to be created, and many places to look for evidence of those easements. Having a clear, recorded express easement that defines all of the terms of the agreement between the landowners is the gold standard. It helps maintain a clear understanding of the rights and responsibilities of each neighbor and helps maintain a good neighborly relationship between the neighbors. Other types of easements often lack details and provide the possibility of disagreements and misinterpretations of the rights granted in an easement. Neighbors will be greatly benefited by creating express easements and not relying on the other methods for creating easements.
To learn more about easements and other real estate law issues, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.