I can not express enough,,,,easements do not have to always be recorded to be valid. If they are not recorded they are just harder to prove. for example
1 lets say john owns a three acre parcel, with street frontage on "a" street.
John then convey a peice of his three acres to suzy. the peice that john conveys to suzy is the back half of his lot with no frontage on "a" street. Suzy would have an implied easement on and over johns parcels to get to "a" street. This is called an implied easement, and if it is disputed gennerally by a judicial ruling would becme an easement by nessesity. The theory behind this is that when someone sells land there is an implication that the seller would provide a way to utilize it, and an implication or presumption that a buyer would not by sometihng they could not access. therefore, if you lots were ever in unity of ownership, an easement may well be implied.
prescrpitive easements are never recorded, until they are disputed and the courts rules in fact a prescriptive easement in fact does exist. A prescriptive easement is acquired through using the land of another without permission, very similar to aderse possession without the exclusive requirment. An example of this is when John owns a parcel of land which is situated between a road and a lake. Lets say in arguendo, that for 25 years, the residents of johns neighborhood have been using a trail through johns parcel to get to the water. These residents and possibly the public at large might have gained a perscriptive easement to the water.
An apparent easement is never in writing, it has to do with the phsyical characteristics of the land and topography. Lets say, John is looking to buy a new home for his family. He haapens along and finds a pretty cape, that is on a nice lot. He inspects the property. He closes and purchases the property. when John was inspecting the property, he noticed that there was a home behind the one he was about to buy, and it appeared, or atleast should have appeared to a resonable person performing due diligence, that this back house was using the same driveway as the one for the home he was going to purchase. even if he made inquiry from the realtor and or owner,who in arguendo told him the back house uses it with permission, a good case could be had that the driveway was an apparent easement and was so apparent that it was contructive notice to the world least any future owners. Cases such as these generally tend to boil down to credibilty of witnesses, wether permission was ever granted or not.
The best way i know of when fighting to defend what might be a prescriptive easement or apparent easement is not to give oral permission. Oral permission always raises credibilty issues in court. The other problem with permission is that it not only needs to be given,, but accepted. Many people recieve the advice of sending a letter of permission, not. These letters are viewed as selfserving and do not show that a) you had the authority to grant the permission anr b) that permision was ever accepted.
I have always chosen to outsmart my advesaries and express my sincere regards that things have ended up were they are and that after long condsideration of the costs in both money and neighborlyness do not wish to dispute things anymore, and wish to grant them, in writing a liscensce, to continue utilizing your property. Generally, individuals not represented by an attorney, go for a liscense, and are even willing to sign it. Why a liscense, they are revocable, not transferable, and they toll any adverse claims a litigant might have, and they can be recorded with the land evidence records.
Bill
