![]() ![]() ![]() An easement may also be acquired by “prescription.” An easement by prescription (also known as a “prescriptive easement”) arises from the continuous, notorious, adverse use of a driveway, or similar path across another’s land for a period of twenty-one years. Likewise, where the circumstances are reversed, such that the seller has landlocked himself by selling off a parcel between his remaining property and a public road, the law will create an easement in favor of the seller across the lands purchased by the buyer. Under Pennsylvania law, if a seller of real estate sells a landlocked parcel of land at a time when the seller has remaining land which could provide the landlocked parcel with access to a public thoroughfare, and if the parties for some reason fail to provide for a driveway across the seller’s remaining lands, the law generally provides the purchaser with an implied easement over the remaining lands of the seller. Curiously, however, an easement can arise without any agreement at all. As a result, no easement can arise on a handshake alone. The Pennsylvania Statute of Frauds generally requires that any transfer of an interest in real estate, including the grant of an easement, is not binding unless reduced to a signed writing. In either case, the easement will usually appear as a paragraph buried on page two of the deed of conveyance. This typically occurs where a seller subdivides real estate and either sells an otherwise landlocked parcel together with a right of way across the remaining lands of the seller, or where the seller retains the landlocked parcel, and conveys a parcel subject to the seller’s right of way across the land being conveyed. Often, an easement will be contained within the body of a deed providing for the outright conveyance of a parcel of real estate. Though not precisely funny, this “joke” does point up a basic truth: there is a lot of room for confusion, and uncertainty interpreting one’s rights and obligations under an easement or restrictive covenant, and even in determining whether a valid Pennsylvania easement, or restrictive covenant exists.Īn easement is generally defined as an intangible, or non-possessory right to use another’s land for a precise and definite purpose not inconsistent with the other’s simultaneous right to use the same property, or, in language only a lawyer could love, an “incorporeal hereditament.” Typically, a Pennsylvania easement is created by written and signed agreement, or by a deed of easement or grant of easement. This is what passes for humor in law school. In law school, one of the jokes that circulated through first-year property law class was this: with an easement you have the right to walk across your neighbor’s land with a restrictive covenant, you have to run across because you’re not sure. Easements and Restrictive Covenants in Pennsylvania Deeds
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