Learning Outcomes
After reading this article, you will be able to identify and explain the main methods by which rights in real property—such as easements, profits, and covenants—are created. You will understand the requirements for express creation, implication, prescription, and estoppel, and be able to apply these principles to MBE-style questions.
MBE Syllabus
For MBE, you are required to understand the ways in which rights in real property are established. This includes knowing the legal requirements for each method and being able to distinguish between them in exam scenarios.
- Recognize and explain the express creation of rights in land (e.g., by deed or written instrument).
- Identify when rights arise by implication (e.g., prior use, necessity, subdivision plat).
- Understand the requirements for acquiring rights by prescription (adverse use).
- Explain creation by estoppel (irrevocable licenses).
- Distinguish between the creation of easements, profits, and covenants.
- Apply these principles to fact patterns and select the correct answer in MBE questions.
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.
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Which of the following is NOT a valid method for creating an easement appurtenant?
- Express grant in a deed
- Prescription through adverse use
- Oral agreement with no reliance
- Implication from prior existing use
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An owner sells landlocked Parcel A and retains Parcel B, which borders a public road. Parcel A has no access except across Parcel B. What is the most likely basis for Parcel A’s right to cross Parcel B?
- Express reservation
- Easement by necessity
- Easement by prescription
- License
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A landowner orally permits a neighbor to build a driveway across her land. The neighbor spends money constructing the driveway. Later, the landowner tries to revoke permission. What doctrine is most likely to prevent revocation?
- Prescription
- Estoppel
- Implication
- Merger
Introduction
Rights in real property—such as easements, profits, and covenants—can be created in several ways. Understanding the methods of creation is essential for answering MBE questions on property law. This article explains the four principal methods: express creation, implication, prescription, and estoppel.
Express Creation
The most straightforward way to create a right in land is by express grant or reservation, usually in a written instrument such as a deed. The Statute of Frauds generally requires that interests lasting more than one year be in writing and signed by the grantor.
Key Term: Express Grant The creation of a right in land (e.g., easement, profit, covenant) by a written instrument, such as a deed, signed by the grantor.
Creation by Implication
Sometimes, rights arise without a written instrument. These are called implied rights, and they occur in specific circumstances:
- Implied from Prior Use (Quasi-Easement): If, before dividing land, the owner used one part for the benefit of another (e.g., a driveway), and this use is apparent and reasonably necessary, a court may imply an easement.
- Implied by Necessity: When land is divided and a parcel is left without access to a public road, an easement by necessity may be implied.
- Implied from Subdivision Plat: Buyers of lots in a subdivision may have implied easements to use streets shown on a recorded plat.
Key Term: Easement by Implication A right to use land that arises automatically due to circumstances such as prior use, necessity, or reference to a subdivision plat, even without a written grant.
Creation by Prescription
Rights may also be acquired by long, adverse use—similar to adverse possession. If someone uses another’s land openly, continuously, and without permission for the statutory period, they may acquire a prescriptive easement.
Key Term: Prescriptive Easement A nonpossessory right to use another’s land, acquired by open, notorious, continuous, and adverse use for the statutory period.
Creation by Estoppel
If a landowner allows another to use land, and that person reasonably relies on the permission to their detriment (e.g., by spending money), the landowner may be estopped from revoking the right. This is sometimes called an irrevocable license or easement by estoppel.
Key Term: Easement by Estoppel A right to use land that becomes irrevocable when the user reasonably relies on the landowner’s permission and suffers detriment as a result.
Creation of Profits and Covenants
Profits (the right to take resources from land) and covenants (promises about land use) are generally created by express grant, but profits may also arise by implication or prescription. Covenants must be in writing and signed to be enforceable.
Worked Example 1.1
A owns Blackacre and uses a path across one part of the land to access a well. She sells the part with the house to B and the part with the well to C, but the deed is silent about the path. B continues to use the path to reach the well. C objects.
Answer: B may have an easement by implication if the prior use of the path was apparent and reasonably necessary at the time of the sale.
Worked Example 1.2
D allows E to use a road across D’s land to reach E’s property. E uses the road openly and without permission for 20 years, the statutory period. D later tries to block the road.
Answer: E may have acquired a prescriptive easement, since the use was open, continuous, and adverse for the required period.
Worked Example 1.3
F tells G she can build a fence on F’s land to enclose her garden. G spends money building the fence. F later tries to revoke permission.
Answer: G may have an easement by estoppel, since she relied on F’s permission and suffered detriment.
Exam Warning
Be careful: Not all oral agreements create enforceable rights in land. Unless there is detrimental reliance, an oral license is generally revocable at will.
Revision Tip
Always check whether the facts support express creation, implication, prescription, or estoppel. Look for evidence of prior use, necessity, long adverse use, or detrimental reliance.
Key Point Checklist
This article has covered the following key knowledge points:
- Rights in real property can be created by express grant, implication, prescription, or estoppel.
- Express creation requires a written instrument signed by the grantor.
- Implied rights arise from prior use, necessity, or reference to a subdivision plat.
- Prescriptive rights require open, continuous, adverse use for the statutory period.
- Estoppel applies where there is detrimental reliance on permission to use land.
- Profits and covenants are usually created by express grant; profits may also arise by implication or prescription.
Key Terms and Concepts
- Express Grant
- Easement by Implication
- Prescriptive Easement
- Easement by Estoppel
