Rights in real property - Express

Learning Outcomes

After reading this article, you will be able to identify and explain the requirements for creating express rights in real property, including the formalities for express easements, the role of the Statute of Frauds, and the distinction between express and implied rights. You will be able to apply these principles to MBE-style scenarios and recognize common pitfalls in exam questions.

MBE Syllabus

For the MBE, you are required to understand how express rights in real property are created, transferred, and enforced. This article focuses your revision on:

• Recognizing and defining express rights in real property, especially express easements.
• Understanding the requirements for valid express grants and reservations.
• Applying the Statute of Frauds to express rights in land.
• Distinguishing express rights from implied or prescriptive rights.
• Identifying formalities and enforceability issues in exam scenarios.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is required for the valid creation of an express easement for more than one year?
   1. Oral agreement between the parties.
   2. Continuous use of the land for the benefit of another.
   3. A written instrument signed by the grantor.
   4. Open and notorious use for the statutory period.
2. If a landowner conveys land "to A, reserving a right of way for myself," what has the landowner created?
   1. An express grant of an easement.
   2. An express reservation of an easement.
   3. An implied easement by necessity.
   4. A license.
3. Under the Statute of Frauds, which of the following is true regarding express rights in land?
   1. All express rights must be recorded to be valid.
   2. Only oral agreements are enforceable.
   3. Express rights for more than one year must be in writing.
   4. Express rights are never enforceable against successors.

Introduction

Express rights in real property are interests created by clear, intentional statements, usually in writing, granting or reserving a right over land. The most common example is the express easement, which allows one party to use another's land for a specific purpose. The creation, transfer, and enforceability of these rights are governed by strict formalities, especially the Statute of Frauds.

Key Term: Express Right in Real Property
A right or interest in land created by explicit written or oral agreement, most often by deed or contract, granting or reserving a benefit over land.

Types of Express Rights

The main type of express right tested on the MBE is the express easement. An express easement is a nonpossessory interest in land that gives the holder the right to use another's land for a specified purpose, such as a right of way.

Key Term: Express Easement
A right to use another's land for a specific purpose, created by a written instrument that clearly states the grant or reservation of the easement.

Creation of Express Easements

To create an express easement for more than one year, the following requirements must be met:

• Writing: The easement must be in a written instrument signed by the grantor. Oral grants are not valid for interests lasting more than one year.
• Intent: The language must clearly indicate the grant or reservation of the right.
• Parties: The grantor (owner of the servient land) and grantee (beneficiary) must be identified.
• Description: The land subject to and benefitted by the easement must be described with reasonable certainty.

Key Term: Grant
The transfer of a right or interest in land from one party to another, usually by deed or written instrument.

Key Term: Reservation
The creation of a new right or interest in land for the grantor's benefit, retained when conveying land to another.

Statute of Frauds and Express Rights

The Statute of Frauds requires that any express right in land lasting more than one year must be in writing and signed by the party to be charged. This applies to express easements, covenants, and other interests. Oral agreements for such rights are unenforceable.

Key Term: Statute of Frauds
The legal requirement that certain contracts and interests in land, including express easements for more than one year, must be in writing and signed to be enforceable.

Grant vs. Reservation

• Express Grant: The owner grants a right over their land to another (e.g., "I grant to B a right of way across my land").
• Express Reservation: The owner conveys land but retains a right for themselves (e.g., "to A, reserving a right of way for myself").

Formalities and Enforceability

• Recording: While not required for validity between the original parties, recording the instrument protects against subsequent purchasers.
• Notice: Successors in interest may be bound by the express right if they have actual or constructive notice.

Distinguishing Express from Implied Rights

Express rights are created by clear, intentional statements, usually in writing. Implied rights, such as easements by necessity or implication, arise from circumstances or prior use, not explicit agreement.

Worked Example 1.1

Landowner conveys land "to A, reserving a right of way for myself to cross the property." Is this an express grant or an express reservation, and what is required for it to be enforceable?

Answer: This is an express reservation of an easement. For it to be enforceable for more than one year, the reservation must be in a written instrument signed by the landowner, describing the land and the right reserved.

Worked Example 1.2

B and C are neighbors. B wants to grant C a permanent right to use B's driveway. They agree orally, and C begins using the driveway. After a dispute, B tries to revoke permission. Is C's right enforceable as an express easement?

Answer: No. Because the agreement was oral and the right was intended to last permanently (more than one year), the Statute of Frauds requires a written instrument. C may have a license or, if there is detrimental reliance, a possible claim for an easement by estoppel, but not an enforceable express easement.

Exam Warning

On the MBE, oral agreements for express easements or other rights in land lasting more than one year are unenforceable under the Statute of Frauds. Do not confuse long-term oral agreements with valid express rights.

Revision Tip

Always check for a written instrument when analyzing express rights in land. If the right is for more than one year and not in writing, it is not enforceable as an express right.

Key Point Checklist

This article has covered the following key knowledge points:

• Express rights in real property are created by clear, intentional statements, usually in writing.
• Express easements must be in a written instrument signed by the grantor if lasting more than one year.
• The Statute of Frauds requires writing for express rights in land exceeding one year.
• A grant transfers a right to another; a reservation retains a right for the grantor.
• Recording is not required for validity between original parties but protects against later purchasers.
• Express rights are distinct from implied or prescriptive rights, which arise from use or necessity, not explicit agreement.

Key Terms and Concepts

• Express Right in Real Property
• Express Easement
• Grant
• Reservation
• Statute of Frauds