Real Property: Servitudes: Easements: Creation of Affirmative Easement

Creation of an affirmative easement: (PING) Prescription, Implication, Necessity, Grant.
  • By grant – an easement to endure for more than 1 year must be in a writing that complies with the formal elements of a deed. Called “Deed of easement” because of statute of frauds.
  • By implication (aka easement implied from existing use)
    • EX: A owns 2 lots. Lot 1 is hooked up to a sewer drain located on lot 2. A sells lot 1 to B, with no mention of B’s right to continue to use the drain on A’s remaining lot 2. The court may nonetheless imply an easement on B’s behalf if:
    • The previous use was apparent and
    • The parties expected that the use would survive division because it is reasonably necessary to the dominant land’s use and enjoyment.
  • By necessity – Landlocked setting. An easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out, except over some part of his remaining land.
  • By prescription: Easement may be acquired by satisfying the elements of adverse possession. (COAH)
    • Continuous use for the statutory period
    • Open and notorious use
    • Actual use
    • Hostile use – without servient owner’s consent.
  • NOTE: Permission defeats the acquisition of an easement by prescription. An easement by prescription requires that the use be hostile.
  • Scope of an easement set by terms of grant or condition that created it.
    • EX: A grants B an easement to use A’s private road to get to and from B’s parcel, Blackacre. B has an easement appurtenant to B’s dominant land. A’s parcel is servient. Subsequently, B purchases the adjacent Greenacre, with its small marina. May B unilaterally expand the use of the easement to benefit Greenacre? NO. unilateral expansion is not allowed.