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An easement is a non-possessory property interest to use another’s property. This article will discuss:

  • What is an easement?
  • How are easements created?
  • How are express easements created?
  • How are prescriptive easements created?
  • How are implied easements created?
  • How are easements by necessity created?

If someone wants to use another’s property for a certain purpose, they may create an easement. Examples may be the allowance of utility companies to use land to distribute and maintain power, phone, and cable lines, sewage or draining systems. It may allow a person the right to cross another’s property, or to enter the property for another specific purpose. An easement is a non-possessory property interest to use another’s property. This article will discuss:

  • What is an easement?
  • How are easements created?
  • How are express easements created?
  • How are prescriptive easements created?
  • How are implied easements created?
  • How are easements by necessity created?

What is an easement?

An easement is right of use over someone else’s property.  Easements may be for the benefit of a particular property, such as when a driveway is built through property B to give property A access to the main road. This kind of easement is called an easement appurtenant. Once it is created, it will exist with the property, capable of being sold or inherited.  

An easement can also exist for a sole individual, or business entity. For instance, if someone has a private pond, a property owner may give another an easement in gross to use the pond for fishing. These kinds of easements do not remain with the property.  

How are easements created?

Easements are generally created through four means. The first is an express written easement, where an owner of property gives the person using the easement an express writing evidencing the easement. The second is through a process called prescription, which we will discuss further below. The third way is through implication. The fourth way is through necessity.

How is an express easement created?

An express interest is an interest in land. Interests in land must be given in writing. There are no “magic words” required to create this kind of interest, so long as the parties intend to create the easement, and there is a writing. The party looking to enforce the express easement has the burden of showing the express easement existed.  

The party granting the express easement must have the authority to do so. The person granting the easement must have an ownership interest or authority over the property subject to the easement. This can sometimes raise issues if the property has had a complicated ownership history, and ownership or authority to grant the easement at the time of the creation is not clear.  

How is an easement created by prescription?

Easements created by prescription are similar to the concept of adverse possession. An easement by prescription is created when a person uses another’s land under a claim of right or color of title, openly, notoriously, continuously, and hostilely for ten years or more (see adverse possession article). However, an easement by prescription has to do with the right to use another’s property, while adverse possession has to do with the right to acquire title of the property being used.  

Hostility refers to acts and declarations that show the person claiming the easement (claimant) claims a right to use the land. Claim of right requires evidence showing the claimant claimed that right, and gave the owner of the land in question express notice of that claim. The notice can be actual (telling the owner of the property) or so obvious that if the owner looked into it they would discover the existence of the easement. If the owner of the land gives the claimant permission to continue using the land, an easement by prescription is not created.  

The claimant will need to prove the existence of the easement by facts other than just using the easement, such as improvement of the land (building a roadway or other construction, for instance). There is an exception to the rule for circumstances where the owner of the land in question granted oral agreement or written consent for the claimant to create an easement, and the claimant expends substantial money or labor to create the easement in the way the parties discussed, in reliance of the agreement. In Iowa, cases involving drainage systems normally rely on this theory.  

How is an easement created through implication?

An easement is created by implication when the Court reasonably assumes an easement was intended by the parties to a real estate transaction exist after its sale. To prove there was an easement by implication, a plaintiff must show:

  1. Separation of title
  1. A showing that, before the separation took place, the use creating the easement was so long, continued, and obvious, it was clear the use was intended to be permanent
  1. It appears the easement is continuous rather than temporary
  1. The easement is essential to the beneficial enjoyment of the land

In making this determination, the court will consider the prior use of the property, whether the parties know about this prior use, whether the easement is necessary, and whether there was any money paid because of this easement.

An easement will only be implied when the use of the property existed before the property was later separated. When someone purchases a certain portion of land, the new owner may split it into multiple portions. If the entirety of the land was previously used for a particular purpose, property lines may now stand in the way of carrying out that use.  

For instance, say people regularly walked from point 1 to point 2 over property A. Later, a buyer purchases property A, and divides it into properties A, B, and C. The walkway goes over A, B, and C. The resident on property A wants to continue using this path, but B wants to prevent people from walking on their land. The person on property A will argue an easement was created by implication due to the previous use of the property.  

The use of the land must have been “so long continued and obvious” that it was clearly intended to be permanent. The use must also be essential for the person to continue using the land to their full enjoyment. For instance, if a person routinely used a section of Property A to get from his home on Property B to an otherwise inaccessible part of his property, an easement may be implied – otherwise the person living on Property B would be significantly harmed. The use needs to be a necessity, not a mere convenience, and must have existed at the time of the division of the property.  

How is an easement by necessity created?

An easement by necessity is similar to the easement by implication, however, it does not require a showing that the parties intended to create an easement. They are usually formed when a parcel of property is landlocked, with no access to the road. The requirements for an easement by necessity are:

  1. The two portions of property must have been unified at some point in the past;
  1. The property was separated at some point;
  1. Necessity of the easement

The courts will assume a party who gives property to someone else intends to give whatever is necessary for the beneficial use of the property. With this principle in mind, courts will likely grant easements by necessity if the necessity existed at the time the property was divided. Even if the property requiring the easement is sold to a new owner, who has notice of the lack of the easement, the court will still probably grant an easement of necessity.  

Posted 
April 20, 2021
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