Rights in real property - Methods of creation

Learning Outcomes

This article explains methods of creating rights in real property, including:

• Identifying and distinguishing express grants or reservations of easements, profits, and covenants, and recognizing when the Statute of Frauds and recording requirements are relevant on the MBE.
• Determining when easements and related rights arise by implication from prior existing use, strict or reasonable necessity, or subdivision plats and common development schemes.
• Applying the elements of prescriptive rights—open, notorious, continuous, and adverse use for the statutory period—to fact patterns involving driveways, paths, and resource extraction.
• Evaluating when an oral license, combined with substantial, foreseeable reliance, becomes an easement by estoppel or irrevocable license, and how long such rights typically endure.
• Comparing how each method of creation affects scope, transferability, and enforcement of easements appurtenant, easements in gross, profits, real covenants, and equitable servitudes.
• Analyzing bar-style hypotheticals to determine which creation theory fits the facts, eliminating distractor answers that misclassify licenses as easements or confuse necessity, implication, and prescription.
• Using a structured checklist to spot facts that signal express creation, implication, prescription, or estoppel, ensuring faster and more accurate issue-spotting under exam time pressure.

MBE Syllabus

For the MBE, you are required to understand how nonpossessory rights and use restrictions in land are created, with a focus on the following syllabus points:

• Recognize and explain express creation of rights in land (e.g., by deed, recorded instruments, and written covenants)
• Identify when easements and similar rights arise by implication (prior existing use, necessity, subdivision plat or common scheme)
• Understand elements for acquiring prescriptive rights (open, notorious, continuous, and adverse use for the statutory period)
• Explain creation by estoppel and the concept of irrevocable licenses
• Distinguish between the creation of easements, profits, real covenants, and equitable servitudes
• Apply these rules to fact patterns involving successive owners, recording, and notice issues

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 NOT a valid method for creating an easement appurtenant?
   1. Express grant in a deed
   2. Prescription through adverse use
   3. Oral agreement with no reliance
   4. Implied from prior existing use
2. 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?
   1. Express reservation
   2. Easement by necessity
   3. Easement by prescription
   4. License
3. 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?
   1. Prescription
   2. Estoppel
   3. Implication
   4. Merger

Introduction

Rights in real property—such as easements, profits, and covenants—give nonowners legally enforceable powers to use land or to control how it is used. On the MBE, the method of creation often determines whether a claimed right exists at all, whether it binds successors, and what defenses are available.

This article focuses on four principal methods by which these rights arise:

• Express creation
• Creation by implication
• Creation by prescription
• Creation by estoppel

These methods are tested most frequently in the context of easements, but the concepts also carry over to profits and, to a more limited extent, to covenants and equitable servitudes.

Key Term: Express Grant
The creation of a right in land (e.g., easement, profit, covenant) by a written instrument, such as a deed or other signed writing, that satisfies the Statute of Frauds and clearly describes the right granted.

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 or a separate easement agreement.

Because easements, profits, and covenants are interests in land, the Statute of Frauds generally applies:

• The right must be in a writing
• Signed by the grantor (or party to be charged)
• That reasonably identifies the servient land, the burden or benefit, and the scope and duration of the right

Common examples include:

• “O grants to A and A’s successors an easement to use the driveway over Blackacre.”
• “Lot 1 shall be used for residential purposes only” (a restrictive covenant)
• “O grants to B the right to enter Blackacre to remove timber” (a profit)

Express rights can arise either by:

• Grant: Owner conveys a new interest to another (e.g., “O grants to A an easement…”)
• Reservation: Owner conveys land but reserves a right over it (e.g., “O conveys Blackacre to A, reserving an easement over the north 10 feet for driveway purposes”)

On the MBE, be sensitive to whether the jurisdiction allows reservation of an easement in favor of a third party. The modern majority permits this; an older minority rule does not. Unless the question highlights the minority rule, assume the modern approach.

Express creation also covers:

• Easements appurtenant vs. in gross: Both can be created expressly. Appurtenant easements benefit a parcel (dominant estate); easements in gross benefit a person or entity (e.g., utility company).
• Profits: These almost always arise by express grant or reservation, because they involve taking resources from another’s land.
• Real covenants and equitable servitudes: These are created by written promises regarding land use (e.g., “no commercial use,” “setback requirements”).

Key Term: Real Covenant
A promise regarding the use of land, made in a written instrument, that can bind successors if certain technical requirements (including writing and intent) are met.

Key Term: Profit
A nonpossessory right to enter another’s land and remove resources (such as minerals, timber, or game).

Key Term: License
A revocable permission to enter or use land that does not create an interest in land and ordinarily can be revoked at will.

Recording of the instrument is not required to create the right, but it is important for priority and notice issues. On the MBE, assume a properly executed writing is sufficient to create the right; recording issues are tested separately under recording statute questions.

Creation by Implication

Sometimes, rights arise without a specific written grant. These are called implied rights, and they arise only in limited, fact-specific settings. Implication most commonly applies to easements, but similar logic underlies some implied covenants in subdivision cases.

Key Term: Easement by Implication
A right to use land that arises automatically because of the prior relationship between parcels (such as prior use, necessity, or a subdivision plan), even without an express written grant.

The main categories are:

• Easement implied from prior existing use (quasi-easement)
• Easement by necessity
• Easements implied from a subdivision plat or common scheme

1. Implied from Prior Use (Quasi-Easement)

Elements typically required (majority rule):

• Common ownership: The dominant and servient parcels were once held by a single owner.
• Existing, apparent, and continuous use at the time of severance: Before division, the owner used one part of the land for the benefit of another (e.g., a roadway, drain line, or path), and this use would be discoverable upon reasonable inspection.
• Reasonable necessity: The continuation of that use is reasonably necessary for the enjoyment of the conveyed or retained parcel.

This is sometimes called a “quasi-easement” before severance, because an owner can’t hold an easement over their own land, but their pattern of use can set the stage for an implied easement when the land is divided.

MBE tips:

• The use must exist before the parcels are severed.
• “Reasonably necessary” is a lower standard than strict necessity; alternative routes that are much more burdensome usually satisfy necessity.

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 from prior existing use if the path’s use was apparent and reasonably necessary at the time of the sale, and the parcels were previously under common ownership.

2. Easement by Necessity

An easement by necessity also arises out of prior common ownership, but the degree of necessity is higher.

Typical elements:

• Common ownership: One owner held the now-separated parcels.
• Severance creates a landlocked parcel: At the time of severance, one parcel is left with no legal access to a public road or utility.
• Strict necessity: The easement is strictly necessary for access (not just more convenient). Mere inconvenience or increased cost is not enough.

The easement is implied over the grantor’s remaining land (or sometimes over other parcels derived from the common grantor) to reach a public road.

Key points for the MBE:

• Necessity is judged at the time of severance, not based on later changes.
• The easement by necessity ends when the necessity ends (e.g., if a public road later is built giving the parcel direct access).
• If the parcel is not truly landlocked, an easement by necessity is unlikely, even if other routes are highly inconvenient.

3. Implied from Subdivision Plat or Common Scheme

Two related doctrines show up on the MBE:

• Easements from subdivision plats: When a developer records a plat showing streets, alleys, or paths and then sells lots by reference to that plat, purchasers normally obtain implied easements to use the streets and other areas designated for common use.
• Implied reciprocal negative servitudes (for covenants): Where a developer has a common scheme of development and imposes similar recorded restrictions on most lots, courts may imply restrictions on unsold lots—even if an individual deed is silent—so long as buyers had notice of the general plan.

Example: A recorded plat shows internal streets and a small park. Buyers of lots have implied easements to use those streets and the park, even if individual deeds don’t mention them.

Creation by Prescription

Rights may also be acquired by long, adverse use, similar to adverse possession. This is most commonly tested with prescriptive easements.

Key Term: Prescriptive Easement
A nonpossessory right to use another’s land, acquired by open, notorious, continuous, and adverse use for the statutory period.

Elements typically required (paralleling adverse possession):

• Open and notorious: The use is visible or obvious enough that a reasonable owner would notice.
• Continuous for the statutory period: Use occurs as often as a reasonable owner would use that type of land (seasonal use may suffice if it matches the land’s nature).
• Adverse/hostile: Without the owner’s permission, under a claim of right.
• For the statutory period: The period is determined by state law; on the MBE, you usually are told it (or can analogize to adverse possession).

Key differences from adverse possession:

• The user acquires only a use right, not title.
• Exclusivity is usually not required for an easement (multiple people can use a path and still acquire a prescriptive easement).

Permission defeats adversity. If the owner gave permission (a license), the use is not hostile. On the MBE, watch for:

• A neighbor initially using a path with express permission; prescriptive rights usually do not arise unless the neighbor clearly repudiates the permission and continues to use the path in a way that is clearly adverse.

Tacking is generally allowed: successive users can tack their periods of use if there is privity between them (e.g., transfer of the dominant parcel).

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:
If the original “allowance” was not permission (or was revoked), E may have acquired a prescriptive easement because the use was open, continuous, and adverse for the required period. If the use remained permissive throughout, there would be no prescriptive easement.

MBE detail:

• You cannot usually acquire negative easements (e.g., a right to prevent your neighbor from blocking your view) by prescription in the majority of jurisdictions.
• Prescriptive rights generally cannot be acquired against government-owned land.

Creation by Estoppel

Sometimes a landowner gives another person permission to use land (a license), and the user reasonably and foreseeably relies on that permission by making substantial expenditures or improvements. If the owner later tries to revoke the permission, a court may find an easement by estoppel, also called an irrevocable license.

Key Term: Easement by Estoppel
A right to use land that becomes effectively irrevocable when the user reasonably relies on the landowner’s permission and suffers detriment as a result, such that it would be inequitable to allow revocation.

Elements typically examined:

• Permission: The owner gives permission for the use (often oral).
• Reasonable, foreseeable reliance: The user changes position in a significant way—e.g., building a structure, expensive improvements, or long-term investments—relying on continued permission.
• Detriment: The user would suffer substantial loss if the permission is revoked.
• Equity: It would be unjust or unconscionable to allow the owner to revoke.

Once these elements are met, the owner is estopped from revoking the right, at least for as long as necessary to avoid injustice. The right may be termed an “irrevocable license” or treated functionally like an easement.

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 (or irrevocable license) because she reasonably relied on F’s permission and incurred substantial expense; it would be inequitable to allow F to revoke.

Contrast with a mere oral license where the licensee has not relied or has made only trivial expenditures: that license remains freely revocable.

Creation of Profits and Covenants

Profits and covenants share many of the same creation methods but with some important differences.

Profits

Profits—rights to take resources from land—can be created:

• Expressly, by written grant or reservation (most common and safest method)
• By implication, in limited circumstances similar to implied easements (e.g., a long-standing, obvious practice of one parcel owner taking water or gravel from another’s land, coupled with severance of common ownership)
• By prescription, through long, adverse, open, and continuous taking of resources (e.g., repeatedly cutting timber from a neighbor’s land without permission for the statutory period)

On the MBE, if the fact pattern clearly describes repeated resource extraction over time and the elements of prescriptive use are met, a profit by prescription is a plausible answer.

Covenants and Equitable Servitudes

Covenants are generally created only by express writing:

• The promise must be in a signed writing (deed, declaration, or recorded agreement).
• The writing must show intent to bind successors if running of the burden or benefit is later in issue.
• Real covenants and equitable servitudes both begin with a written promise; they differ mainly in remedies and technical requirements for running.

An important form of “implied” creation arises in subdivision settings:

• Reciprocal negative servitudes/common scheme restrictions: Where a developer records a declaration or imposes similar restrictions in most deeds within a subdivision, courts may treat reciprocal burdens as implied on all lots, even if a particular deed is silent, if buyers had notice of the common plan.

This is conceptually similar to easements implied from a subdivision plat but operates as a restriction (equitable servitude) rather than a use right.

Worked Example 1.4

A developer records a detailed subdivision plat showing streets and a small lakeside park, then sells lots by reference to the plat. The deeds say nothing about park access. Years later, the developer’s successor tries to fence off the park and use it exclusively.

Answer:
Lot owners likely have an easement by implication to use the park and streets shown on the recorded plat. The rights arise from the recorded plan and sales by reference to that plan, even in the absence of express grants in individual deeds.

Worked Example 1.5

A developer sells 40 of 50 subdivision lots with recorded covenants limiting lots to single-family residential use. The last 10 deeds omit the restriction. A buyer of one of the unrestricted lots begins building a commercial store. Neighbors sue to stop construction.

Answer:
The neighbors may enforce a reciprocal negative servitude (an implied equitable servitude) if there was a common scheme of residential development and the buyer had notice (via surrounding restrictions and recorded instruments).

Exam Warning

Be careful: Not all oral agreements create enforceable rights in land. Unless the agreement is reduced to a writing that satisfies the Statute of Frauds, or there is substantial detrimental reliance justifying estoppel, an oral license is generally revocable at will and will not support an easement or covenant claim.

Common MBE pitfalls:

• Treating longstanding neighborly accommodation as an easement when it was permissive and never adverse.
• Finding an easement by necessity where the parcel is not truly landlocked.
• Overlooking that prescriptive rights cannot usually be obtained against public land.
• Assuming a covenant exists when there is no written promise regarding land use.

Revision Tip

Always identify the factual clues that match each method of creation:

• Look for documents (deeds, declarations, recorded plats) for express rights.
• Look for prior use at the time of severance, or landlocked parcels, for implied easements.
• Look for long, open, non-permissive use for prescriptive rights.
• Look for oral permission plus substantial improvements for estoppel-based rights.

When answering MBE questions, start by classifying the alleged right (easement, profit, covenant, or license), then ask which creation mechanism the facts best support.

Key Point Checklist

This article has covered the following key knowledge points:

• Rights in real property (especially easements, profits, and covenants) can be created by express grant or reservation, implication, prescription, or estoppel.
• Express creation requires a signed writing that satisfies the Statute of Frauds and clearly describes the right; recording affects priority but not initial validity.
• Easements can be implied from prior existing use (common ownership, apparent and continuous use, reasonable necessity).
• Easements by necessity require prior common ownership and strict necessity at the time of severance, usually for landlocked parcels, and terminate when necessity ends.
• Subdivision plats and common development schemes can imply easements to use streets and parks, and can support reciprocal negative servitudes (equitable servitudes) across lots.
• Prescriptive rights (easements or profits) require open, notorious, continuous, and adverse use (or taking) for the statutory period; permission defeats adversity.
• Estoppel can convert a license into an effectively irrevocable right when there is substantial, foreseeable reliance and resulting detriment.
• Profits are typically created by express grant but may arise by implication or prescription; they allow removal of resources from another’s land.
• Covenants and equitable servitudes are generally created only by written promises about land use, but subdivision schemes can generate implied reciprocal negative servitudes.
• On the MBE, correct classification of the alleged right and its method of creation is often the key to choosing the correct answer.

Key Terms and Concepts

• Express Grant
• Easement by Implication
• Prescriptive Easement
• Easement by Estoppel
• Real Covenant
• Profit
• License