PastPaperHero | Rights in real property

Learning Outcomes

This article explains express rights in real property for MBE purposes, including:

The nature and function of express rights in land—especially easements, profits, real covenants, and equitable servitudes—and how exam questions typically frame them.
How express easements are validly created by grant or reservation, how to classify them as appurtenant or in gross, and how to identify the dominant and servient estates.
The formal deed and Statute of Frauds requirements for written instruments creating express rights, including necessary parties, descriptions, signatures, delivery, and the limited role of part performance.
How recording, actual, record, and inquiry notice determine whether express rights bind subsequent purchasers and whether a party qualifies as a bona fide purchaser on the exam.
How to distinguish express easements from licenses and from implied or prescriptive rights, and how those distinctions change available remedies and the correct multiple-choice answer.
The typical rules governing scope, intensification of use, and overburdening of express easements, especially when the dominant estate is subdivided or the manner of use evolves over time.
The principal methods of modifying and terminating express rights—release, merger, abandonment, estoppel, prescription, and condemnation—and how exam fact patterns signal that an easement has been extinguished.

MBE Syllabus

For the MBE, you are required to understand express rights in real property, with a focus on the following syllabus points:

Recognizing and defining express rights in land, especially express easements.
Understanding the requirements for valid express grants and reservations.
Applying the Statute of Frauds to easements, profits, covenants, and other express interests in land.
Distinguishing express easements from licenses, implied easements, and prescriptive rights.
Analyzing recording and notice issues affecting enforceability against successors.
Identifying common drafting, scope, and enforcement pitfalls tested on the exam.
Knowing how express rights can be modified or terminated (e.g., by release, merger, or abandonment).

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.

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.
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.
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 on the MBE 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
An interest in land created by explicit agreement (usually written), granting or reserving a benefit or burden affecting real property.

Express rights are contrasted with implied and prescriptive rights, which arise from conduct, prior use, or long-term adverse use rather than from an explicit agreement. On the exam, the first step is to see whether the facts describe a written instrument. If so, you are usually dealing with an express right and must apply Statute of Frauds and recording principles.

A reliable exam approach is:

Identify the type of right (easement, profit, covenant, servitude, license).
Determine how the right was created (express writing, implication, prescription, estoppel).
Decide who is currently benefitted and burdened (dominant vs servient estates).
Ask whether successors had notice and whether the right has been modified or terminated.

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 specific purpose, such as a right of way or the right to run utility lines.

Key Term: Express Easement
A nonpossessory 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.

Other express rights in land that may appear in questions include:

Profits à prendre (rights to enter land and take something from it, such as minerals or timber).
Real covenants and equitable servitudes (promises restricting or requiring certain uses of land).

Key Term: Profit à Prendre
An express right to enter another's land and remove resources (e.g., minerals, timber, game), which, like an easement, is a nonpossessory interest in land.

Key Term: Real Covenant
A promise concerning the use of land that runs with the land at law, binding and benefitting successors when certain requirements are met (including writing, intent, touch and concern, and usually privity).

Key Term: Equitable Servitude
A promise regarding land use enforceable in equity (usually by injunction) against successors who have notice and where the promise touches and concerns the land, even if the technical requirements for a real covenant are not all satisfied.

Profits and covenants are created by express agreement in much the same way as easements: they normally require a signed writing satisfying the Statute of Frauds, and they are commonly created in deeds or subdivision declarations.

The Basic Easement Structure: Dominant and Servient Estates

Most easements involve two parcels of land:

Key Term: Servient Estate
The parcel of land burdened by an easement; its owner must tolerate the easement holder’s use.

Key Term: Dominant Estate
The parcel of land benefitted by an easement appurtenant; its owner holds the right to use the servient land.

Two main forms of easements are tested:

Key Term: Easement Appurtenant
An easement that benefits the holder in her capacity as owner of a particular parcel of land (the dominant estate). The benefit automatically runs with that land.

Key Term: Easement in Gross
An easement that benefits a person or entity personally, rather than benefitting a particular parcel of land. There is a servient estate but no dominant estate.

An easement appurtenant attaches to the land and passes automatically with the dominant estate, even if not mentioned in the deed.
An easement in gross is tied to the holder personally. Commercial easements in gross (e.g., utility lines, railroad tracks) are generally transferable; purely personal ones (e.g., “O gives friend F the right to fish in the pond”) usually are not.

Key Term: Affirmative Easement
An easement that allows the holder to do something on the servient land (e.g., cross it, lay pipes, run wires).

Key Term: Negative Easement
An easement that allows the holder to prevent the servient owner from doing something on the servient land that would otherwise be permissible (e.g., blocking light or support). Traditionally limited to narrow categories (light, air, support, and flow of an artificial stream) and usually created only by express writing.

Understanding which type you have matters for exam questions about transfers, scope of use, and successors.

Negative easements vs restrictive covenants: In modern practice, most “don’t build higher than two stories” or “no commercial use” restrictions are treated as covenants or equitable servitudes rather than negative easements. If the right is framed as a promise (“grantee covenants not to build higher than two stories”), think covenant/servitude; if it is framed as a right (“grantee grants grantor an easement to maintain an unobstructed view”), think negative 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. Many jurisdictions in practice require a writing for any easement, because it is a transfer of an interest in land.
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 (e.g., “a 10-foot strip along the northern boundary of Blackacre for ingress and egress”).
Formalities: Because an easement is an interest in land, the writing must satisfy deed formalities (e.g., proper execution, delivery, and acceptance).

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 (e.g., a right of way kept by the seller).

Only the owner of the servient estate needs to sign; the grantee’s acceptance is usually presumed if the easement is beneficial. As with deeds, delivery of the instrument with the present intent to transfer the interest is essential; an unsigned draft or an undelivered document does not create an easement.

The writing does not need to be technically perfect. On the exam, language such as:

“Grantor grants and conveys to B a perpetual right of way over the existing gravel road across Blackacre”

is sufficient. If the location is ambiguous (“a right of way across Blackacre”), courts will typically supply reasonable details based on the parties’ intent, the existing use, and necessity.

Express easements are presumed to be of perpetual duration unless the instrument specifies a shorter period (e.g., “for 10 years,” “for the life of A”).

Exam Tip: If you see a right of way described in a deed without any time limit, treat it as a perpetual easement unless facts clearly show otherwise (such as an explicit termination date or a clear tie to a particular lease term).

The same formalities generally apply to express profits à prendre, which are analyzed very similarly to easements. The grant must specify the resource to be taken (e.g., “all timber,” “gravel,” “fish”), the land from which it may be removed, and the duration.

Statute of Frauds and Express Rights

The Statute of Frauds (SOF) requires that certain interests in land be in writing and signed by the party to be charged. This includes:

Express easements (especially those intended to last more than one year or indefinitely).
Profits à prendre.
Real covenants and equitable servitudes created by promise.
Leases and other interests lasting more than one year.
Contracts to convey interests in land (land sale contracts).

Key Term: Statute of Frauds
The rule that certain agreements, including transfers of interests in land lasting more than one year and contracts for such transfers, are enforceable only if evidenced by a signed writing.

An oral agreement purporting to create a long-term easement is unenforceable as an express easement. At most, it might create:

A license (a revocable permission), or
An easement by estoppel or other implied right (if substantial reliance is shown), which is analyzed under implied-right doctrines, not as an enforceable express easement.

Key Term: Part Performance (Real Property Statute of Frauds)
Acts such as taking possession, making substantial improvements, or paying significant consideration that some courts treat as sufficient evidence of an oral land contract, allowing enforcement despite the lack of a writing.

In the land-sale context, part performance can sometimes take a contract out of the SOF. But be careful:

Part performance may validate an oral contract to convey land or an easement, allowing specific performance of the contract.
It does not convert a defective oral “grant” into a valid express easement that satisfies property law formalities. The resulting right will typically be characterized as an easement by implication or by estoppel, not as a properly created express easement.

On the MBE, when the question is clearly about an “express easement,” lack of a compliant writing is usually fatal under the SOF unless the easement is explicitly limited to a very short term (such as less than a year) and the jurisdiction in the fact pattern recognizes an oral exception.

Key Term: Easement by Estoppel
A nonpossessory right to use land that arises when a landowner gives permission for use, the user reasonably and foreseeably relies by making substantial expenditures, and it would be inequitable to revoke. Often used to avoid injustice when an attempted express grant fails under the Statute of Frauds.

Grant vs. Reservation

When a landowner creates an express easement, they can do so in two basic ways:

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").

In both cases, the easement must satisfy the Statute of Frauds if it is to last more than one year.

The grant or reservation will also determine which parcel is servient and which is dominant:

In a grant, the grantor’s land is servient and the grantee’s land (if appurtenant) is dominant.
In a reservation, the conveyed parcel is servient and the land retained by the grantor (if appurtenant) is dominant.

Majority rule on reservations in favor of third parties:

A grantor can reserve an easement for herself when conveying.
Under the traditional majority rule, a grantor cannot reserve an easement in the deed directly in favor of a third party who is not the grantor (a “stranger to the deed”); such a clause is void.
A modern minority view allows such third-party reservations, but unless the exam says otherwise, apply the traditional majority rule and treat the attempted reservation as ineffective.

Careful reading of the deed language is important. “Subject to” a prior easement usually acknowledges an existing burden; it does not create a new easement. “Reserving” generally creates a new right for the grantor.

Express Easements: Appurtenant vs. In Gross and Successors

The effect of an express easement on successors is tested frequently.

Easement appurtenant:
- Benefit: Automatically passes with the dominant estate, even if not mentioned in the deed.
- Burden: Binds a purchaser of the servient estate who has notice (actual, record, or inquiry).
Easement in gross:
- If commercial (e.g., utility easement), it is usually transferable and enforceable by the holder’s successors.
- If purely personal, it generally does not transfer unless the instrument clearly provides otherwise (“to B and B’s assigns”).

Key Term: Bona Fide Purchaser (BFP)
A purchaser for value who takes property without notice (actual, record, or inquiry) of a prior interest and who is protected under the applicable recording statute.

A BFP of the servient estate without notice of an easement takes free of that easement. Notice can be:

Actual notice: The purchaser actually knows about the easement (e.g., it is disclosed at closing).
Record notice: The easement is properly recorded in the public records in the chain of title.
Inquiry notice: Visible use (e.g., obvious driveway, utility lines, maintained path) would lead a reasonable buyer to inquire further.

If the easement’s use is apparent on inspection, a purchaser is on inquiry notice and will usually be bound even if the deed creating the easement was never recorded.

Recording is not required for validity between the original parties. An unrecorded express easement is fully valid as between grantor and grantee; recording is about priority and protection against subsequent purchasers.

Subdivision and Intensification of Use

Express easements often raise questions when the dominant estate is subdivided or its use changes:

When the dominant estate is subdivided, each parcel owner is generally entitled to use the easement, so long as:
- The use is for the benefit of the original dominant land, and
- The total use does not unreasonably increase the burden on the servient estate.
The fact that the easement is used more intensely (e.g., more houses on the dominant estate) does not automatically terminate the easement. The test is whether the increased use is within the scope reasonably contemplated at creation.

If the easement is used to benefit after-acquired land that was not part of the dominant estate, that is usually an impermissible overburdening. The servient owner may seek an injunction restricting the use to the original dominant parcel.

Scope and Interpretation of Express Easements

The written instrument may be very specific (“a ten-foot pedestrian walkway”) or very general (“a right of way”). Courts interpret the scope of an express easement by:

The language of the grant.
The circumstances at the time of creation (e.g., existing road, the nature of the dominant estate).
The reasonable expectations of the parties.

General rules:

Ambiguous easements are construed to allow uses reasonably necessary for the enjoyment of the dominant estate, but not uses that impose an unreasonable burden on the servient land.
A right of way for “ingress and egress” usually includes vehicular traffic if that is normal for the area and consistent with the parties’ expectations, even if only foot traffic existed at the time of grant.
The easement holder may make repairs or improvements reasonably necessary to enjoy the easement, but may not expand beyond the scope of the grant.

A grant of an “exclusive easement” can be significant.

Key Term: Exclusive Easement
An easement that gives the holder the sole right to use the defined easement area for the specified purpose, sometimes even excluding the servient owner from making the same type of use.

An exclusive easement may entitle the holder to prevent the servient owner from granting similar rights to others that would interfere with the easement’s use. However, unless the language is very strong, it does not usually transfer ownership; it remains a nonpossessory right.

Duration and Termination of Express Easements

Express easements typically last indefinitely unless a shorter duration is specified. They can, however, be terminated. Common termination methods tested on the MBE include:

Release: The easement holder executes a written release in favor of the servient owner.
Merger: The same person comes to own both the dominant and servient estates in the same estate (e.g., both in fee simple). The easement is extinguished and will not automatically revive if the parcels are later severed again.
Abandonment: The easement holder demonstrates intent to abandon plus conduct manifesting that intent (e.g., building a permanent structure blocking the easement route). Mere nonuse, no matter how long, is not enough.
Estoppel: The servient owner reasonably and detrimentally relies on statements or conduct of the easement holder indicating that the easement will no longer be used (e.g., holder tells servient owner “I will never use this easement again” and servient owner builds a structure in the path).
Prescription: If the servient owner wrongfully and adversely interferes with the easement (e.g., fences it off) and maintains that interference for the statutory period, the easement can be lost by prescription.
Condemnation or destruction: Government condemnation of the servient land for a use inconsistent with the easement, or permanent destruction of the servient estate, may terminate the easement.

Termination often requires a writing because extinguishing an easement is itself a transfer of an interest in land. A casual oral “agreement” to terminate is generally ineffective as to a perpetual express easement.

Express Easements vs. Licenses

Licenses are often tested alongside express easements.

Key Term: License
A revocable privilege to enter or use another’s land, which does not create an interest in land and may be created orally.

Key differences:

Express easement:
- Is an interest in land.
- Must satisfy the SOF if lasting more than one year (and usually regardless of duration).
- Is not freely revocable; it endures until its stated duration ends or it is properly terminated by one of the recognized methods.
- Can bind successors to the servient estate (subject to notice and recording).
License:
- Is a personal privilege, not an interest in land.
- Can be created orally or in writing.
- Is generally freely revocable at will by the licensor (subject to estoppel in some reliance situations).
- Does not run with the land; it ends on revocation or death of the licensor.

On the exam, a long-term permission given orally almost always describes a license, not an express easement, unless the fact pattern indicates reliance sufficient for estoppel.

A license can become effectively irrevocable if the licensee reasonably relies on it and makes substantial expenditures. Courts often protect such reliance using easement by estoppel analysis rather than treating the license as having magically turned into an express easement.

Other Express Rights: Profits and Covenants

While this article focuses on easements, remember:

A profit à prendre is created and analyzed much like an express easement, including SOF and recording. A question granting “the right to enter and remove timber” is likely a profit. Profits can be appurtenant (benefitting a specific dominant estate) or in gross (benefitting a person or company, such as a logging company). Commercial profits in gross are usually transferable.
Real covenants and equitable servitudes are created by written promises regarding land use (e.g., “no commercial use,” “residential only,” “grantee covenants to maintain a fence”). They must satisfy the SOF and recording requirements and may run with the land.

High-level exam points:

Real covenants (legal remedy = damages) run with the land if:
- The promise is in a writing that satisfies the SOF.
- The original parties intended it to run (“heirs and assigns” language is common but not strictly necessary).
- The promise “touches and concerns” the land (relates to its use or value).
- There is the required privity (horizontal and vertical privity, particularly for the burden to run).
Equitable servitudes (equitable remedy = injunction) require:
- A writing (or a common scheme in some subdivision cases).
- Intent that the promise bind successors.
- The promise touching and concerning the land.
- Notice to the burdened successor (actual, record, or inquiry).

Their detailed treatment is covered in separate materials, but you must recognize them as express rights in land subject to SOF analysis and recording rules.

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 in favor of the grantor. For it to be enforceable for more than one year, the reservation must be in a written instrument signed by the landowner, describing with reasonable certainty the land conveyed and the right reserved. If properly executed and delivered, the easement will usually be appurtenant to the retained parcel and will bind successors who take with notice.

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 does not have an enforceable express easement. C likely has a license, which B can revoke. If C has substantially relied (e.g., built permanent improvements) in a way that would make revocation unjust, C might claim an easement by estoppel or some other implied right, but that is analyzed under non-express doctrines.

Worked Example 1.3

O owns Lot 1 and expressly grants in a recorded deed “a perpetual easement for ingress and egress over the existing gravel road” to the owner of neighboring Lot 2. Later, O sells Lot 1 to P, who inspects the land and sees the gravel road plainly used by Lot 2’s owner, but P does not check the records. P then blocks the road. Is P bound by the easement?

Answer:
Yes. The easement is an express easement appurtenant benefitting Lot 2. The benefit passes with Lot 2; the burden passes with Lot 1 to P. Even if P had not seen the recorded deed, the visible gravel road and use provide inquiry notice. A reasonable purchaser would investigate the apparent use. Because P had at least inquiry notice (and, in fact, could have had record notice), P is not a bona fide purchaser without notice and takes subject to the easement.

Worked Example 1.4

G owns a large tract and conveys the front half “to A and her heirs, reserving an easement of way across the front half in favor of B, the owner of adjoining Lot X.” The jurisdiction follows the traditional majority rule regarding reservations to third parties. Has an express easement in favor of B been created?

Answer:
No. Under the traditional majority rule, a grantor may reserve an easement only for herself, not directly for a third party who is a stranger to the deed. The attempted reservation “in favor of B” is void, so no express easement is created for B. A may still grant B an easement later by a separate written instrument, or an implied easement might arise on different facts, but there is no valid express easement for B under this deed.

Worked Example 1.5

Owner orally tells Neighbor, “You have a permanent right of way across my field.” In reliance, Neighbor spends a large sum grading and paving a driveway across Owner’s land. Several years later, Owner demands that Neighbor stop using the driveway. Neighbor sues, claiming an express easement. How should the court rule?

Answer:
Neighbor cannot enforce a permanent express easement because the Statute of Frauds requires a signed writing to create an easement of indefinite duration. The oral statement fails that requirement. However, Neighbor’s substantial, foreseeable reliance on the permission may support an easement by estoppel or another implied right, preventing Owner from revoking the use. On an MBE question framed narrowly about “express easements,” the correct analysis is that no valid express easement exists due to the Statute of Frauds.

Worked Example 1.6

O, the owner of Blackacre, grants to Utility Co. “an exclusive easement in gross to construct and maintain underground power lines across the south 20 feet of Blackacre.” Utility Co. later assigns its rights to a successor company. O sells Blackacre to Buyer, who objects that (1) an “exclusive” easement is invalid, and (2) the easement in gross could not be assigned. Is Buyer correct?

Answer:
No. The easement is a valid express easement in gross. It is commercial in nature (for utility lines), so it is generally transferable; Utility Co. could assign it to a successor. Calling the easement “exclusive” means Utility Co. may be able to exclude O and others from putting conflicting utilities in that strip, but it does not make the easement invalid. Buyer takes Blackacre subject to the easement if Buyer had notice (e.g., through recording of the easement deed or visible utility markers).

Worked Example 1.7

D owns Parcel A (fronting the road) and Parcel B (behind A and landlocked). D sells Parcel B “together with an easement for ingress and egress over Parcel A as it is now used” to Buyer. At the time of sale, there is only a narrow dirt path used on foot. Ten years later, Buyer builds a small house on Parcel B and begins driving a car over the path daily, causing erosion. D sues, claiming the easement is limited to foot traffic. How should a court rule?

Answer:
A court is likely to hold that the easement permits reasonable vehicular access. The language “as it is now used” suggests that the existing path defines the location, not necessarily the mode of travel forever. An express right of way for ingress and egress is interpreted to allow uses reasonably necessary to enjoy the dominant estate, including vehicular access to a residence, unless the grant clearly limits it. If the car use can be accommodated with reasonable maintenance, D cannot enjoin it, though Buyer may be responsible for reasonable repair of the path.

Worked Example 1.8

S sells the back half of her property to B, reserving an express easement over a driveway across the back half for S’s benefit. Later, S buys back the back half from B, becoming sole owner of the entire original tract again. Several years later, S sells the back half to C but does not mention any easement in the deed. S now claims an easement over the driveway. Is S correct?

Answer:
No. When S reacquired both the dominant and servient parcels in the same ownership and estate, the easement was extinguished by merger. Once extinguished, it does not automatically revive when S later re-severs the parcels by conveying to C. To retain a driveway right, S needed to create a new express easement in the deed to C.

Worked Example 1.9

Owner executes a signed, written instrument granting Neighbor “a license to use Owner’s dock for 25 years.” Neighbor pays substantial consideration for the right. After three years, Owner sells the land to Purchaser, who seeks to revoke Neighbor’s use, arguing the instrument created only a revocable license. How is a court likely to treat this right?

Answer:
Despite the word “license,” the instrument is written, signed, for a defined term, and supported by consideration. Courts look to substance, not labels. A 25-year, paid-for right to use real property, reduced to writing and intended to be nonrevocable for the term, is functionally an express easement (or at least an easement for years). Purchaser takes subject to the easement if Purchaser had notice. On an MBE, the best answer would usually be that Neighbor holds a valid express easement (or profit-type interest) that cannot be unilaterally revoked before the term expires.

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. If you see substantial reliance, be prepared to shift your analysis to implied doctrines (estoppel, implication, necessity, or prescription), but remember that those are not express rights.

Revision Tip

Always check for a written instrument when analyzing express rights in land. Ask:

Is there a signed writing by the party to be charged?
Does the writing adequately describe the land and the right?
Has the instrument been recorded, and did successors have notice?
Has any later event (release, merger, abandonment, adverse obstruction) terminated the right?

If the right is for more than one year and not in writing, it is not enforceable as an express right, though another doctrine may apply.

Key Point Checklist

This article has covered the following key knowledge points:

Express rights in real property are created by clear, intentional agreements, usually in writing.
Express easements are nonpossessory interests in land that must satisfy deed formalities and, if lasting more than one year, the Statute of Frauds.
A grant transfers a right over land to another; a reservation retains a new right for the grantor when conveying land.
Easements can be appurtenant (benefitting a dominant estate and automatically running with the land) or in gross (benefitting a person or entity).
Easements are further divided into affirmative (allowing use) and negative (preventing certain uses), with negative easements closely related to restrictive covenants.
The burden of an express easement binds a purchaser of the servient estate who has actual, record, or inquiry notice; a bona fide purchaser without notice may take free of an unrecorded, nonapparent easement.
The scope of an express easement is governed primarily by the language of the grant, interpreted in light of the parties’ intent and reasonable necessity; overuse or use to benefit non-dominant land may be an impermissible overburdening.
Express easements, like other property interests, can be terminated by release, merger, abandonment, estoppel, prescription, or condemnation.
Licenses are personal, revocable permissions that can be created orally and do not create interests in land; long-term oral “rights” are usually licenses, not express easements, unless an easement by estoppel arises.
Profits, real covenants, and equitable servitudes are also express rights in land and must satisfy the Statute of Frauds; they are commonly enforced through damages (covenants) or injunctions (equitable servitudes).
Recording is not required for validity between the original parties, but recording protects against later purchasers and is central to notice analysis on the exam.
Express rights are distinct from implied or prescriptive rights, which arise from use, necessity, or reliance rather than from explicit agreement.

Key Terms and Concepts

Express Right in Real Property
Express Easement
Servient Estate
Dominant Estate
Easement Appurtenant
Easement in Gross
Affirmative Easement
Negative Easement
Exclusive Easement
Grant
Reservation
Statute of Frauds
License
Easement by Estoppel
Profit à Prendre
Real Covenant
Equitable Servitude
Bona Fide Purchaser (BFP)
Part Performance (Real Property Statute of Frauds)

Rights in real property - Express