West Virginia Easement Law

An easement gives its holder a right to use the property of the grantor for a designated purpose. Such an easement is known as an affirmative easement. Examples of affirmative easements are:

• Utility Easements;
• Right-of-way Easements; and
• Driveway Easements.

Easements may also prohibit a landowner from using his property in a given manner. Such are known as negative easements. Examples of negative easements include:

• Conservation Easements;
• Historic Preservation Easements; and
• Light and Air Easements.

Creation of Easements in WV

West Virginia law recognizes that easements may be created in several ways.

Express Easements – Express easements are created by the execution of a written agreement which sets forth the location, dimensions, and scope of the easement.

Easements By Prescription – A claimant may prove the existence of an easement by prescription by showing:

1. That his use of the easement has been open, continuous and uninterrupted for a period of ten years;
2. That his use was adverse to that of the true owner and with the knowledge and acquiescence of the true owner; and
3. That he did not have the permission of the owner to use the land.

Easements By Necessity – To establish an easement by necessity, a claimant must prove that:

1. There was common ownership between the dominant and servient estates;
2. A conveyance of a parcel of the commonly owned land left either the land granted or the retained landlocked; and
3. There was no reasonable means of accessing the landlocked parcel.

Easements By Implication – A claimant must prove three elements to establish an easement by implication:

1. A separation of title between the dominant and servient estates;
2. A necessity, that before separation of title, was so long continued and obvious as to show that the use was meant to be permanent; and
3. That the easement is necessary for the beneficial enjoyment of the dominant estate.

Easements By Implied Reservation – An easement by implied reservation comes into play in instances where the grantor conveys a portion of his property that leaves the land he retains landlocked and fails to reserve an express easement for ingress and egress across the land conveyed. To prove an easement by implied reservation, the grantor must show:

• Unity and subsequent separation of title;
• Obvious benefit to the dominant estate and burden on the servient estate existing at the time of the conveyance;
• Use of the premises by the common owner in their altered condition for so long before conveyance as show that the change or alteration was meant to be permanent; and
• Necessity for the easement.

Easement Issues and Disputes

One of the most common causes of easement disputes is poorly written easement agreements. When an easement agreement is unclear in its terms, the parties to the agreement may be uncertain of their rights and obligations under the agreement or may simply disagree as to what their rights and obligations are. Common easement disputes include allegations of:

• Merger;
• Trespass;
• Misuse;
• Abandonment;
• Termination; and
• Failure to Pay Property Taxes or Insurance.

Help from a Real Estate Attorney in West Virginia

Because poorly written easement agreements often lead to easement disputes, an experienced real estate attorney should be hired to draft the easement agreement. A real estate attorney will make sure that all necessary provisions are included in the agreement and that all state law requirements are satisfied. If you are currently negotiating an easement, you should have an attorney review the agreement before you sign it to ensure that your interests are adequately protected. A real estate attorney can also be of assistance if you are already involved in an easement dispute.