Welcome to the third episode of our video series on easements. In the previous episode, we discussed appurtenant easements, easements in gross, conservation easements, and solar easements. Today, we will explore the written documents used to create easements between benefitting and burdened properties.
Contents
Creating an easement with a writing
The most common method of creating an easement is through a written document. Any legal document used to convey an interest in real estate can be used to establish an easement. Some examples of such documents include:
- Easement agreements
- Wills
- Grant deeds
- Easement deeds
- Quitclaim deeds
- Leases
- Court orders
- Covenants, conditions, and restrictions (CC&Rs)
An easement can be created in a conveyance either by grant or reservation. For instance, the owner of adjacent parcels of real estate may sell one parcel to a buyer and grant the buyer an easement on the retained parcel. Alternatively, an owner may sell a parcel and reserve an easement on the sold parcel for the benefit of the retained parcel.
Creative wording and certainty of purpose
Whether an easement is created by grant or reservation, uncertainties arising from omissions and ambiguities in the wording of the easement document often lead to disputes. To avoid such conflicts, it is crucial for the document to clearly state:
- The names of the grantor and grantee
- A description of the burdened property
- The precise location of the easement on the burdened property
- The intended use of the easement
- Whether the easement is appurtenant or in gross
Easement or fee title conveyed by deed
When it comes to conveyances of real estate, the terms “reservation” and “exception” are used to distinguish between the creation of a burden (easement) or the retention of ownership (exception). An easement by reservation is created when a property owner conveys a parcel while reserving the right to use a road on the conveyed property. In this case, the entire parcel is sold, but a burden in the form of an easement is placed on it.
In contrast, an exception occurs when the grantor conveys the parcel and excludes the portion of the property where the road is located. The grantor retains ownership of that portion, and it does not become part of the buyer’s property. The distinction between a reservation and an exception is significant and affects the rights and ownership of the parties involved.
Ambiguities and uncertainty
Ambiguities in easement documents can lead to disputes. Let’s consider an example: a subdivider sells a parcel of land to a buyer but reserves a strip of the parcel for a future road. Later on, the subdivider claims the right to build a railroad on the strip since it was excepted from the neighboring owner’s parcel. The buyer, however, argues that the strip was reserved as a roadway easement and cannot be used for a railroad.
In situations like this, where it is unclear whether an easement was reserved or a portion of the property was excepted from the sale, the law presumes that the seller conveyed all the property and created an easement by reservation. This means that the roadway easement exists, and the seller did not retain fee ownership of that portion of the parcel.
In conclusion, creating an easement through a written document requires careful consideration of the wording and clear intent. By following these guidelines, property owners can avoid disputes and ensure the rights and responsibilities related to easements are properly established.
To learn more about easements and property ownership, visit the Ambassadeur Hotel.
