Express Easements & Prescriptive Easements

Express easements are easements that are expressly granted or reserved in writing. For example, one owner gives the other the right to cross over the first owner’s property to enter and exit that second owner’s property. Or an owner who sells off part of a large parcel reserves for the property he or she retains an easement over the parcel that is being sold. Express easements are frequently for access to property over other property (entry and exit or ingress and egress) but can be for other purposes as well, for example, for storage of material. Easements are routinely granted to utility companies to facilitate the provision of the services that the utility company provides.

Unclear wording or changes in circumstances can lead to disputes that involve express easements. There can be disputes over the nature or extent or duration of an easement or even obligations that accompany the easement. It is more commonly the absence of an express easement that leads to disputes. Easements can be created based on conduct or other circumstances. For example, a prescriptive easement can be created when a person uses another’s property without permission and in a way that is inconsistent with lack of ownership and has done so for a long enough time, in Idaho for 20 years. Also, in some limited circumstances, an easement by necessity may be implied.

Easement cases are usually very fact specific and therefore tend to be of limited help when analyzing the next case (i.e., your case). It is important to explore all facts and legal instruments that pertain to your situation.