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Property Easements

An easement is an interest in land, but not an interest in the title to land. More specifically, the interest in land the easement grants is the right of one or more persons to use another’s real estate for either a general or a particular purpose. The easiest example would be a common driveway where there are three houses lined up and the back two homeowner’s have to drive through the first homeowner’s portion of the driveway to get to their homes. The back two homeowners have an easement interest in the first homeowner’s land whereby they can use it merely to travel to their home.

Most easements are created by formal grant drawn and executed with the same formality as a deed. One landowner grants another individual the right to use his/her land for limited purposes. Restrictive covenants or community/neighborhood indentures may also operate as a grant sufficient to crease an easement.

More indirectly, and similar to easements created by formal grant, easements can also be created by reservation or exception. An easement is “reserved” when by the terms of a grant the grantor retains an easement (e.g., I’ll give you the property but leave me this amount of property for use).

Lastly, under Missouri law, easements can also be created by implication or prescription. These are the two that generally lead to the most litigation and dispute. An implied easement is generally found only in connection with the conveyance of property, and then only with the severance of adjoining properties or the division of a single property. It is not favored by the law. An easement acquired by prescription is a right acquired by continued and un-interrupted use which is open and visible, hostile, and under claim of right for a period of at least ten years.The primary problem with a prescriptive easement is the defense of permissive use. An easement cannot by created by prescription if the landowner simply gave permission; it would fully negate the hostile element.

Easement disputes are not matters that can be settled quickly, particularly because it involves real estate and often implicates homes and driveways built on disputed land. It usual takes a trip to the record of deeds office, competent legal counsel, thorough review of deeds and contracts, and even litigation sometimes to reach a resolution.

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