Suppose your next-door neighbor has direct access to a park-like neighborhood commons area with a playground. The official neighborhood entrance to the commons is completely on the other side – about a half-mile walk. No worries, your neighbor assures you. She grants you permission to cross over the corner of her lot anytime, with your kids, pets, or visitors, to access the commons.
When you go to sell the property, the deciding factor for your buyers is access to that beautiful commons area. When they ask you about the distance to the entrance, you tell them not to worry. They will be buying a right-of-way across the lot next door. You have an easement to access the playground through your neighbor’s yard. Surely they will benefit from this, because easements run with the land and pass from owner to owner. (Your brother-in-law is a lawyer, so you know just enough to be dangerous.)
You believe that this burdened your neighbor’s land for the benefit of your property, it was granted with the owner’s express permission, and you remember that she even signed something. Although you can’t find it, you recall that it names you specifically and says you can cross her property to get to the park. However, you’re fairly certain it didn’t identify the property, and it definitely was not recorded. No such easement has appeared on the title work pulled in preparation for closing.
Trying to save the sale, you visit your neighbor, who is a lawyer, to ask for confirmation of the easement. She has grown tired of your family wearing down a path across her yard, and she personally knows and dislikes your buyers. She tells you to go pound sand. You don’t have an easement—she gave a license for this access, and only to you.
Of course, she’s correct. A license grants permission to use another’s property for a specified purpose, but it does not convey any interest in the land, and, unlike an easement, it is entirely revocable.
An express easement, which you thought you had, grants an interest in real property, so it must be in writing to survive the statute of frauds. It also needs words of conveyance, showing mutual agreement and a clear intent to create it. It must be permanent, irrevocable, and unambiguous. It also needs to be recorded with the county recorder or register of deeds, so it shows up in the chain of title.
Finally, you need to accurately describe the property that is subject to the easement. In next week’s blog, we’ll examine a 2022 decision of the St. Clair Circuit Court, which was affirmed on appeal, in a case that all came down to the description of the easement.
To protect your interests, you should seek legal counsel in any real estate transaction. The attorneys at Dalton & Tomich will use their decades of real property law experience to provide you with cost-effective solutions to your issues. Watch this space for the next several weeks for more information about the many types and nuances of easements.
NB: This article does not constitute legal advice and does not create an attorney-client relationship with any reader(s).
