An easement is the right of use over the property of another. Easements are created by grant or reservation, express or implied, or by prescription.
Types of Easements in OR
An express easement is created by written instrument, such as a deed or contract, which clearly sets forth the intention of the parties to create the easement. The easement agreement should contain the identity of the parties, the location and dimensions of the easement, the scope of the easement, as well as provisions pertaining to liability, maintenance, payment of property taxes and insurance, and termination.
A reserved easement is a type of express easement and is usually established in a deed. A reserved easement benefits the land retained by the grantor, while placing a burden on the conveyed land.
An implied easement is inferred based on the intent of the parties as determined by the facts and circumstances surrounding the transaction. An implied easement typically arises when the common owner of a parcel of land conveys a part of that land to another. Under Oregon law, courts will consider the following three factors in determining whether to imply an easement:
- The claimant's need for the easement;
- The manner in which the property was used before it was conveyed; and
- The extent to which the manner of prior use was or might have been known to the parties.
Easements By Prescription
Under Oregon law, a claimant may establish an easement by prescription by showing that his use of the property over which he claims the easement has been open, notorious, and adverse to the rights of the true land owner for a continuous and uninterrupted period of ten years.
Extinguishment of Easements
Under Oregon law, an easement may be extinguished by consent, prescription, abandonment, or merger. Additionally, an easement by necessity terminates when the necessity which gave rise to it ceases to exist.
Easement and Property Boundary Line Disputes
Easement issues frequently arise in relation to boundary lines and encroaching improvements. Easement disputes may also arise as a result of vague and ambiguous easement agreements that fail to properly address important issues such as:
- The location of the easement;
- The dimensions of the easement;
- Who's responsible for paying property taxes and insurance;
- Liability and indemnification; and
Help from a Real Estate Attorney in Oregon
A real estate attorney handles a variety of legal matters related to the purchase, sale, and lease of residential and commercial property, including issues related to the establishment and enforcement of easements. If you are involved in an easement dispute, a real estate attorney can advise you on how Oregon easement law impacts your case, assist you in negotiating a settlement, and represent you if your case goes to trial.