Easements are an important and sometimes necessary part of owning real property. But they are also complex and complicated legal creations that require considerable experience and knowledge to understand, unravel, or litigate.
They also require a complete understanding of the law to properly create an easement.
In today’s post we’ll discuss 4 ways an easement can be created.
Easement Basics in Brief
Before we delve into the 4 ways an easement can be created, it is important to understand that an easement is a nonpossessory interest in someone else’s’ real property. An easement gives the holder of the right (i.e., the easement holder) the right to use the property (the “servient estate”). But it does not give them the right to own it. The landowner (or grantor of the easement) continues to own all of the property.
There are different types of easements. In addition, easements can be a privilege granted to an individual that cannot be transferred, or they can “run with the land” and will transfer if the property is sold.
Here are the 4 different ways an easement can be created:
By Express Grant
The most common way of creating an easement is by express grant. An express grant (or express easement) is generally created in a writing that clearly defines and describes the easement and is executed with the same formalities as a deed.
In contrast to an express easement, an easement by prescription is created without the consent of the property owner. Like adverse possession, a prescriptive easement requires proving open and hostile, and continuous use for a statutory period (7 years). It also requires proof of the width of the easement (20 feet), and that the width and use of the easement has not changed over time. The claimant must also prove that his or her possession did not originate in fraud, and that it was exclusive, uninterrupted, peaceable, and accompanied by a claim of right.
Easement by Necessity
An easement by necessity arises in situations where a parcel is landlocked. If there is no other way to enter the property except by crossing over that of another, the law will imply an easement by necessity. However, the person seeking the easement bears the burden of proving that access is necessary because there is no other way to enter or leave the property. If any other access exists, the easement will not be granted. Similarly, if some other way of entering the property becomes available in the future, the easement will terminate.
Easement by Compulsory Purchase and Sale
Georgia law allows the court to essentially condemn private property in certain situations and grant private individuals a private way. The court can set the amount of compensation to be paid and can order the compulsory purchase and sale of the property over which the easement is claimed.
Understanding easements requires experience and knowledge. If you have a situation involving an easement, consult experienced counsel.
Our Experience is Your Advantage.
At the Law Offices of Mark Weinstein, P.C., our clients benefit from our experience. We have extensive experience in real estate law. We have offices in Cumming, and we serve clients in Atlanta, Gainesville, Gwinnett County, Bartow County, Hall County, Henry County, Cherokee County, Clayton County, Cobb County, and other counties throughout Georgia. To find out what we can do for you, call us today at: 770-888-7707. Or you can e-mail us with inquiries at: firstname.lastname@example.org