Creation of Easements
Okay, the secret is out. I am currently studying for my bar exam. In the process, I must study real property law and other areas of law that pertain to real estate and may be helpful to a real estate or land investor. I figured since I was studying anyways, I might as well put each topic one video at a time. I also started a YouTube channel which can be seen here.
4 ways an easement can be created (remember, an easement is a non possessory interest in land):
- Expressly by a writing: This could mean when a property is transferred, an easement is written into the transfer in the deed, land contract or property purchase agreement.
- Implied by prior use: This is when an easement is created by time. When someone uses a property, for example, to cut through to get to their parcel of land....over time if no one objects or if no one takes action to stop the usage, an easement will be implied by prior use. Three requirements must be met to have an easement implied by prior use (1) unity of title (2) at severance easement must be apparent, and (3) use must be reasonable.
- Implied by necessity: This is when an easement is deemed to be a necessity by the courts. This could happen if a buyer purchased a land locked parcel; then property may have an easement by necessity to get to the property by traveling over another's property.
- Prescription: The same as adverse possession. This means that the property had to be used adverse to the real owners interest, hostile, open and apparent. The only difference is that the usage does not have to be exclusive for someone to obtain an easement by prescription. Thus, if person continues to use a private road (that he does not own) to get home and other people are using the road as well; the person over time may acquire an easement by prescription.