Express Easements: Grant and Reservation in Real Estate

When an easement is granted, the grantor retains ownership of the land (the servient estate), but the grantee gains a legal right to use it (the dominant estate) for the specified purpose.

Exam Tip: When analyzing a problem involving an express grant, always look for the "Grantee." The grantee is the party receiving the benefit of the easement. If the deed says, "I hereby grant to John Doe a right of way," John Doe is the grantee.

Express Reservation: Keeping a Right

An Express Reservation is essentially the mirror image of a grant, but it occurs during the transfer of property. When a landowner sells a piece of land, they may wish to retain certain rights for themselves. Instead of "granting" the right to someone else, they "reserve" the right for themselves in the deed of conveyance.

For example, if a developer sells a large parcel of land to a homeowner but needs to ensure that the developer's remaining adjacent land still has access to the main road, the developer will include a clause in the deed stating that they "reserve an easement for ingress and egress" over the portion being sold.

In this case:

1. The Grantor (the seller) becomes the holder of the easement.
2. The Grantee (the buyer) becomes the owner of the "servient estate," meaning their land is subject to the reserved easement.

Comparing Grant vs. Reservation

While both result in an easement, the direction of the "transfer" of rights is what distinguishes them.

Determining the Scope of the Easement

The most critical aspect of both express grants and reservations is the language used in the document. Because the document is the "law" between the parties, the scope of the easement is strictly limited to what is written.

If a deed grants an easement "for the purpose of accessing the driveway," the holder cannot suddenly decide to use that same easement to lay underground sewage pipes unless the language allows for it. If the language is ambiguous, courts will often look at the intent of the parties at the time the document was signed, but the written word remains the primary authority.

Summary Checklist for Students

When reviewing a legal scenario involving these concepts, ask yourself:

1. Is there a written instrument? (If not, it is not an express easement).
2. Is a right being given away? (If yes, it is a Grant).
3. Is a right being kept by the seller? (If yes, it is a Reservation).
4. What is the specific language? (This defines the Scope).