How an Easement is Created
There are numerous was in which easements can be created. In general, easements are created by an express grant or reservation. This may be in a deed or in an Easement Agreement or Declaration. The benefit of using an Agreement or Declaration rather than by a simple grant or reservation in a deed is that you have the ability to address a variety of matters, including allocation of expenses for maintenance, insurance requirements between the parties, and automatic termination language.
Easements are generally deemed to be permanent unless they contain an express termination provision. If that termination provision is dependent on something that is not in the real estate records, ultimately people will treat that easement as if it’s still in effect even if it the original parties intended to end.
An easement can only be interpreted to encompass what was intended by the original parties to the easement. Sometimes the use of the benefitted property will change, either through subdivision or development, in a manner that causes the easement to be used more heavily than originally intended. For example, if an easement is created in anticipation of one neighbor crossing the burdened land, the later subdivision of benefitted parcel into several lots for individual homes. Depending on the number of units that will utilize the easement area, a court may determine that this is too much more than was originally intended.
The court’s term this “overburdening” and will limit the use of the easement or, in some cases, determine that the “new” use is so inconsistent with the original intent as to make the easement void going forward.