How do I create an create an easement appurtenant in Ohio?

An easement is a limited right to trespass on the property of another. The title remains with the original owner, however. Common types of easements include:

• Right-of-way Easements;
• Driveway Easements;
• Sidewalk Easements;
• Utility Easements;
• Sanitary Sewer Easements;
• Conservation Easements; and
• Historic Preservation Easements.

Easements usually fall into three categories:

1. Easements in Gross.  An easement in gross gives a specific individual or business entity a personal right of use over the land of the grantor. The rights of the owner are not considered in this case. Unless the easement agreement states otherwise, easements in gross cannot be inherited, sold, or assigned.
2. Easements Appurtenant. An easement appurtenant benefits adjoining property regardless of ownership.  To create an easement appurtenant, there must be a dominant estate and a servient estate.  The property that benefits from the easement is known as the dominant estate.  The property that is burdened by the easement is known as the servient estate. This may be used for landlocked properties.
3. Prescriptive Easement.  A prescriptive easement arises where someone uses another's property without the owner's permission. The use is adverse, uninterrupted, continuous and under claim of right with the knowledge and acquiescence of the true owner for 21 years. This type of easement involves the loss of use of part of a property only, such as a pathway or a driveway. Payment of property taxes is not required as it is in an adverse possession.

You may create an easement appurtenant in Ohio in four of the following ways:

By Grant – Easements by grant are known as express easements and are established by the execution of a deed, contract, or other written instrument.  The document must be signed by the grantor, witnessed by two disinterested parties and recorded in the real estate records of the county in which the property is located.

By Implication – An easement by implication arises from:

1. Existing use at the time of severance of the unity of title;
2. A conveyance describing the property as being bounded by a street or way;
3. A conveyance that makes reference to a plat or map; or
4. Necessity.

By Prescription – See above.

By Estoppel – Easements by estoppel occur when a landowner represents that an easement exists when it does not or a landowner permits the erection of improvements on his property by a person who believes that he holds an easement over the landowner's property.  One claiming an easement by estoppel must prove:

1. Misrepresentation or fraudulent failure to speak; and
2. Reasonable detrimental reliance.

Talk with an attorney to discuss creating an easement appurtenant in Ohio.