This easement agreement template provides for an express grant of an easement in real property in New York. This template includes practical guidance, drafting notes, and alternate and optional clauses. An easement is an interest in the real property of another that gives the grantee a right to use the grantor's land in some way. Note that an easement provides use rights, not ownership rights or an ownership interest in the land. The land benefitted by the easement is called the dominant estate (or the easement owner), and the land burdened by the easement is called the servient estate. An easement in New York is created by prescription, by express grant or reservation, or by implication. Further, an easement may be either appurtenant or in gross. An easement appurtenant benefits the easement owner in its use of the real property, and runs with the land—i.e., it passes with the conveyance of the land to which it is appurtenant. As a general rule under New York law, an easement in gross, on the other hand, is personal to the easement owner and does not benefit any real property. See Saratoga State Waters Corp. v. Pratt, 125 N.E. 834 (N.Y. 1920). However, New York courts have found several exceptions to this general approach, ruling in those cases in favor of assigning and inheriting certain commercial easements, among others, in gross. See Banach v. Home Gas Co., 199 N.Y.S.2d 858 (Sup. Ct. 1960). Counsel should be aware that New York courts will not construe an easement to be in gross when it may be construed to be appurtenant. See Weidgold v. Bates, 258 N.Y.S. 695 (Sup. Ct. 1932); Warren's Weed New York Real Property § 40.03. Since an easement is an interest in land, an express easement is subject to the statute of frauds under New York law and, if it is for a period longer than one year, must be in writing. See N.Y. Gen. Oblig. Law § 5-703. Under New York law, the creation of an appurtenant easement occurs when the easement (i) is conveyed by written instrument, (ii) is subscribed by the grantor of the easement, and (iii) benefits the dominant estate and burdens the servient estate. New York Land Dev. Corp. v. Bennett, 76 N.Y.S.3d 303 (App. Div. 2018). For purposes of clarity, the grantee's counsel should aim to include with specificity all possible acts that the grantee may desire to carry out in connection with the easement. New York courts have been lenient in determining whether the language is adequately definite and specific. See Warren's Weed New York Real Property § 40.17. Counsel should note that this template is not for use for an easement by prescription or by implication. In New York, a party claiming an easement by prescription must show use of the easement that is adverse, open and notorious, continuous, uninterrupted, and under claim of right for a period of at least 10 years. See Di Leo v. Pecksto Holding Corp., 109 N.E.2d 600 (N.Y. 1952) and NY CLS CPLR § 212. Easements created by implication are not favored under New York law and the party who asserts the existence of an implied easement has the burden to prove that such easement exists by clear and convincing evidence. Buck v. Allied Chemical Corp., 431 N.Y.S.2d 222 (App. Div. 1980). This template assumes: • The grant easement is appurtenant and will run with the land • The servient estate's attorney is drafting the agreement • The parties agree as to the precise easement location • The parties have obtained a survey of the easement area For additional information on easements under New York law, see Warren's Weed New York Real Property §§ 40.01 through 40.64. For further guidance on drafting and negotiating easement agreements, see Easement Agreement Basics.