EXPRESS EASEMENTS

An express easement is created by agreement between the two landowners. An easement is an interest in real property. As such, it is subject to the Statute of Frauds. To be enforceable, it must be in a writing, signed by the party against whom the easement is asserted, or it must fit within one of the exceptions to the Statute of Frauds.

An easement can be created by any number of documents. It can be created by a Grant Deed. It can be created by a contract. It can be created by a partition decree between two joint landowners. Frequently, when land, which had been owned by one party, is split into two or more parcels, an easement will be created by the former owner of the undivided property. An easement does not have to be recorded, but it is prudent to do so. If it is not recorded, and the servient estate is then transferred, the easement may not be enforceable against the new owner of the servient estate.

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