EASEMENTS AND PROMISES CONCERNING LAND

II. CREATION OF EASEMENTS

A.  Five ways to create:  There are five ways in which an easement may be created:

[1]  by an express grant (which generally must be in writing);

[2]  by implication, as part of a land transfer;

[3]  by strict necessity, to prevent a parcel from being landlocked;

[4]  by prescription, similar to the obtaining of a possessory estate by adverse possession; and

[5]  by estoppel.

We’ll discuss each of these in turn.

B.  Express creation:  The most straightforward way of creating an easement is by a deed or will. Thus A, the owner of Blackacre, could give B, the owner of Whiteacre, a deed expressly stating that B has the right to use a particular strip of Blackacre as a right of way, for a certain period of time.

1.  Statute of Frauds:  The express grant of an easement must, in all cases, meet the Statute of Frauds, as it applies to the creation of interests in land. This means that there must be a writing, signed by the owner of the servient estate. Also, any recording act (infra, p. 357) will apply, so that if the holder of the easement does not record, he may lose the easement as against a subsequent bona fide purchaser of the servient estate.

a.  Short-term easement:  Recall that, in most states, a lease for less than one year does not have to be in writing. It could be argued that an easement for less than one year should similarly not have to be in writing. However, a lessee takes actual possession of the leasehold estate, whereas the holder of an easement does not take actual, continuous, possession of the servient tenement. For this reason, most courts require even a very short easement to be in writing; see Burby, p. 68.

i.  Restatement rule:  But Rest. §467, Comment f, requires a writing only where an estate of the same duration would have to be in writing.

b.  Failure to satisfy statute:  If the easement is one which must satisfy the Statute of Frauds, and the parties fail to do so, a license (similar to an easement except that it is revocable at the will of the licensor) will generally be created. See infra, p. 230.

2.  Reservation in grantor:  The owner of land may convey that land to someone else, and reserve for himself an easement in it. Thus A may give B a deed for Blackacre, with a statement in the deed that “A hereby retains a right of way over the eastern eight feet of the property.” This is called an easement by reservation.

a.  Statute of Frauds:  The Statute of Frauds normally requires a writing signed by the party “to be charged.” Since an easement by reservation is enforceable against the grantee, not the grantor, it might be thought that the usual American form of deed (signed only by the grantor) would not be effective as to the reservation. But the courts have held that the grantee, by accepting the deed, and recording it, binds himself as to the reservation even without a signature. 2. A.L.P. 253.