An easement may be implied, express or created in other ways.
Express Easements are most often created by express language in binding documents. Under most circumstances, having a conversation with another party is not sufficient. Parties generally grant an easement to another, or reserve an easement for themselves on disposition of land. An express easement may be "granted" or "reserved" in a
deed or other legal instrument. Alternatively, it may be created by reference to a subdivision plan by "dedication" or in a restrictive covenant in the agreement of an owners association. Generally, the doctrines of contract law are central to disputes regarding express easements.
Implied Implied easements are more complex and are determined by the courts based on the use of a property and the intention of the original parties, who can be private or public/government entities. Implied easements are not recorded or explicitly stated until a court decides a dispute, but reflect the practices and customs of use for a property. Courts typically refer to the intent of the parties, as well as prior use, to determine the existence of an implied easement. Disputes regarding implied easements usually apply the principles of property law. A government authority or private service provider may acquire an implied easement over private land by virtue of the public service it performs. For example, a local authority may have the responsibility of installing and maintaining the sewage system in an urban area. Merely by the fact that it has that responsibility, usually enshrined in some statute or local laws, may give the authority the right, by virtue of an implied easement, to enter private property to carry out installation and maintenance. The location of the easement will not usually be described precisely, but its general position will be defined by the service route (i.e., the sewer pipes in this example). Power and water lines may also have implied easements linked to them, but drainage and stormwater systems are commonly precisely defined in location and recorded in the title documents for private land.
By necessity Necessity alone is an insufficient claim to create any easement. Parcels without access to a public way may have an easement of access over adjacent land if crossing that land is
absolutely necessary to reach the
landlocked parcel and there has been some original intent to provide the lot with access, and the grant was never completed or recorded but is thought to exist. A court order is necessary to determine the existence of an easement by necessity. To obtain this generally the party which claims the easement files a lawsuit, and the judge weighs the relative damage caused by enforcing an easement against the servient estate against the damage to the dominant estate if the easement is found not to exist and is thus landlocked. Because this method of creating an easement requires imposing a burden (the easement) upon another party for the benefit of the landlocked owner, the court looks to the original circumstances in weighing the relative apportionment of benefit and burden to both lots in making its equitable determination whether such easement shall be created by the court. This method of creating an easement, being an active creation by a court of an otherwise non-existent right, may be automatically extinguished upon termination of the necessity (for example, if a new public road is built adjacent to the landlocked tenement or another easement is acquired without regard to comparison of ease or practicality between the imposed easement and any valid substitute). There is also an unwritten form of easement referred to as an implied easement or easement by implication, arising from the original subdivision of the land for continuous and obvious use of the adjacent parcel (e.g., for access to a road, or to a source of water) such as the right of lot owners in a subdivision to use the roadway on the approved subdivision plan without requiring a specific grant of easement to each new lot when first conveyed. An easement by necessity is distinguished from an
easement by implication in that the easement by necessity arises only when "strictly necessary", whereas the easement by implication can arise when "reasonably necessary". Easement by necessity is a higher standard by which to imply an easement. In India, easement of necessity could be claimed only in such cases where transfer, bequeathment or partition necessitates such claim. As an example, some U.S. state statutes grant a permanent easement of access to any descendant of a person buried in a cemetery on private property. In some states, such as New York, this type of easement is called an easement
of necessity.
By prior use An easement may also be created by prior use. Easements by prior use are based on the idea that land owners can intend to create an easement, but forget to include it in the
deed. There are five elements to establish an easement by prior use: • Common ownership of both properties at one time • Followed by a severance • Use occurs before the severance and afterward • Notice • Not simply visibility, but apparent or discoverable by reasonable inspection (e.g. the hidden existence of a sewer line that a plumber could identify may be notice enough) • Necessary and beneficial • Reasonably necessary • Not the "strict necessity" required by an easement by necessity
Example A owns two lots. One lot has access to a public street and the second is tucked behind it and fully landlocked. A's driveway leads from the public street, across the first lot and onto the second lot to A's house. A then sells off the first lot but forgets to reserve a driveway easement in the deed. originally had common ownership of both properties. also used the driveway during this period. A then severed the land. Although A did not reserve an easement, the driveway is obviously on the property and a reasonable buyer would know what it is for. Finally, the driveway is reasonably necessary for a residential plot; here is an implied easement.
By prescription to declare that the crossing onto the private property is a revocable license to protect it from becoming an easement by prescription
Easements by prescription, also called
prescriptive easements, are implied easements granted after the dominant estate has used the property in a hostile, continuous and open manner for a statutorily prescribed number of years. Prescriptive easements differ from adverse possession by not requiring exclusivity. Once they become legally binding, easements by prescription hold the same legal weight as written or implied easements. But, before they become binding, they hold no legal weight and are broken if the true property owner takes appropriate acts to defend their ownership rights. Easement by prescription is typically found in legal systems based on
common law, although other legal systems may also allow easement by prescription. Laws and regulations vary among local and national governments, but some traits are common to most prescription laws: •
open and
notorious (i.e., obvious to anyone) •
actual,
continuous (i.e., uninterrupted for the entire required time period); this does not necessarily require use daily, weekly, etc. •
adverse to the rights of the true property owner •
hostile (i.e., in opposition to the claim of another; this can be accidental, not "hostile" in the common sense) •
continuous for a period of time defined by statute or appellate case law Unlike fee simple adverse possession, prescriptive easements typically do not require
exclusivity. In states that do, such as Virginia, the exclusivity requirement has been interpreted to mean that the prescriptive user must use the easement in a different way from the general public, i.e., a use that is "exclusive" to that user. The period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws (sometimes based on the
statute of limitations on trespass). Generally, if the true property owner acts appropriately to defend their property rights at any time during the required time period the hostile use will end, claims on adverse possession rights are voided, and the continuous use time period will be reset to zero. In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal property owner, the prescriptive easement may become a regular or implied easement rather than a prescriptive easement and immediately becomes binding. An example of this is the lengthy
Irish Lissadell House rights of way case heard since 2010, that extended long-standing consents given to individuals into a public right of way. In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement. Government- or railroad-owned property is generally immune from prescriptive easement in most cases, but some other types of government owned-property may be subject to prescription in certain instances. In New York, such government property is subject to a longer
statute of limitations of action, 20 years instead of 10 years for
private property. In most U.S. jurisdictions, a prescriptive easement can only be determined for an
affirmative easement not a
negative easement. In all U.S. jurisdictions, an
easement for view (which is a negative easement) cannot be created by prescription. Prescription may also be used to end an existing legal easement. For example, if a servient tenement (estate) holder were to erect a fence blocking a legally deeded right-of-way easement, the dominant tenement holder would have to act to defend their easement rights during the statutory period or the easement might cease to have legal force, even though it would remain a deeded document. Failure to use an easement leading to loss of the easement is sometimes referred to as "non-user".
Quebec Under the
civil law of
Quebec possessors with the animus (will) to be owners can acquire a right of ownership (or to a dismemberment of ownership if animus is to inclined) as long as the nature of possession is peaceful, continuous, public and unequivocal throughout. (According to article 2922 of the
Civil Code of Quebec or CCQ) the prescribed period is 10 years (2917–2920 CCQ), except as otherwise provided by law. (2918 sets a different time for unregistered property. Reduced from 30 years.) Exceptions to prescription: Possession cannot establish a servitude under 1181 CCQ, but non-use of a servitude will extinguish it.
Louisiana In the state of
Louisiana, a mixed legal jurisdiction with strong civil law roots, prescription can be either acquisitive or liberative, both of which involve the creation or extinguishing of rights over time.
Acquisitive prescription in Louisiana is analogous to the common law idea of adverse possession. As defined in La. C.C. Art. 3446, "acquisitive prescription is a mode of acquiring ownership or other
real rights by possession for a period of time." Unlike the common law adverse position, Louisiana's acquisitive prescription is not a procedural bar to recovering property but the creation of a new ownership right in the property. Time periods for acquisitive prescription depend on whether the property is movable or immovable and whether the property is possessed in good faith (possessor believes they have title to the property) or in bad faith.
Liberative prescription is analogous to the common law statute of limitations. As defined in La. C.C. Art. 3447, "liberative prescription is a mode of barring of actions as a result of inaction for a period of time." It can be renewed by the party who has gained its protection. For example, a debtor's admission that a debt is still owed renews the creditor's claim against the debtor and starts the tolling of another prescriptive period. This differs from
peremption, which is a fixed time for the existence of a legal right and which cannot be renewed like liberative prescription.
By estoppel When a property owner misrepresents the existence of an easement while selling a property and does not include in the deed to the buyer an express easement over an adjoining property that the seller owns, a court may step in and create an easement. Easements by
estoppel generally look to any promises not made in writing, any money spent by the benefiting party in reliance on the representations of the burdened party, and other factors. If the court finds that the buyer acted reasonably and in good faith and relied on the seller's promises, the court may create an easement by estoppel. For example: Ray sells land to Joe on the promise that Joe can use Ray's driveway and bridge to the main road at any time, but Ray does not include the easement in the deed to the land. Joe, deciding that the land is now worth the price, builds a house and connects a garage to Ray's driveway. If Ray (or his successor) later decides to gate off the driveway and prevent Joe (or Joe's successor) from accessing the driveway, a court would likely find an easement by estoppel. Because Joe purchased the land believing that there would be access to the bridge and the driveway and Joe then paid for a house and a connection, Joe can be said to rely on Ray's promise of an easement. Ray materially misrepresented the facts to Joe. In order to preserve equity, the court will likely find an easement by estoppel. On the other hand, if Ray had offered access to the bridge and driveway
after selling Joe the land, there may not be an easement by estoppel. In this instance, it is merely inconvenient if Ray revokes access to the driveway. Joe did not purchase the land and build the house in reliance on access to the driveway and bridge. Joe will need to find a separate theory to justify an easement.
By government In the
United States, easements may be acquired (bought) by the government using its power of
eminent domain in a
condemnation proceeding in the courts. Note that in the United States, in accordance with the
Fifth Amendment to the U.S. Constitution, property cannot simply be taken by the government unless the property owner is compensated for the fair market value of what is taken. This is true whether the government acquires full ownership of the property ("fee title") or a lesser property interest, such as an easement. For example, utility providers are typically granted jurisdiction-wide easement to access and maintain their existing infrastructure. In the law of England and Wales following the incorporation of the
European Convention on Human Rights into English law, any deprivation of the rights of the owner of property must be "in accordance with law" as well as "
necessary in a democratic society" and "proportionate".
By equity In certain jurisdictions in the United States, especially
California, the court has the power to grant an equitable easement based on principles of equity (fairness). Equitable easements can be created for physical encroachments where the court balances the hardships of the properties and determines an easement is warranted. When determining whether to award an equitable easement, courts utilize the “relative hardship” test. The test is based on the following three factors: 1. The defendant must be innocent. This means that the encroachment must not be willful or based on a negligent act. 2. Unless the rights to the public would be harmed, the court will not allow the encroachment to remain if the encroached upon party will suffer irreparable injury. 3. The hardship to the encroacher must be greatly disproportionate (more) than the hardship to the encroached upon party by allowing the encroachment to remain. Unlike other methods of easement creation, if the court determines that an equitable easement exists, then property owners who are encroached upon are generally entitled to damages. ==Difference from license==