Easement

An easement is a legal right to occupy or use another person’s land for specific purposes. The use of the land is limited, and the original owner retains legal title of the land. A legally binding easement must be made in writing, the exact location stipulated in the property’s deed. Easements most commonly grant utility companies access for the purpose of installing and maintaining power, phone, and cable lines, as well as for water drainage purposes.

An easement may also be granted to allow the owner of a neighboring property to install an access driveway. In most cases, even when the land in question changes hands, the easement remains in effect and subsequent owners are required to allow the easement owner to continue using the land as specified. To explore this concept, consider the following easement definition.

Noun

1. The right to use another person’s land for a designated purpose.

Origin

14th century Late-Middle English esement

What is an Easement

Easements are created when a property owner expresses language in a legal document. While an oral agreement for creation of an easement may be made, it does not always hold up in court. This is referred to as an “implied easement,” and often occurs when two neighbors simply agree that a driveway or other access is necessary to one property across the other, with no legal documentation. This can become a complicated situation in the event the crossed property is sold to someone who does not wish to grant easement rights under an implied easement, and is not always held up in court.

For the creation of an easement to be legally binding, the document must be filed with the county Recorder. Defining the exact location, nature, and purpose of an easement in a deed or other legal document creates an “express easement.”

Types of Easement

There are several types of easement, each of which grants the holder specific use of the property. The type of easement depends on the type of property involved, the relationship of the parties, and the specific use for which the easement is granted.

Utility Easement

A utility easement is perhaps the most common type and it involves giving easement rights to a utility company or the local municipality (city, county, or state) in general. These easements are typically described in the property deed and include a map defining the area to which the utility or municipality is entitled. In the case of a utility easement, the property owner can use the property however they choose, as long as they do not interfere with the utility company or municipality’s use.

Private Easement

Private easements occur when a property owner sells an easement to an individual. This may be for a number of reasons, including giving a neighbor driveway access, or sharing a sewer line or well with a neighbor. Before granting a private easement, or purchasing a property that has this type of easement, it is vital that the property owner or potential buyer review the documents carefully, as a private easement often limits what the property owner can do on or around the defined area. For example, a property owner who has granted a solar access easement to his neighbor may not be allowed to plant trees or construct buildings, either of which would block sunlight, next to the easement

Easement by Necessity

Situations often arise when one property owner must cross another’s land for a crucial purpose, such as accessing their land and home. A landowner cannot be denied access to his home or property, and this is generally taken into account in the deeds when the land is originally divided. Although necessity creates a right to an easement, it is imperative to ensure the exact location of an easement by necessity is recorded on the deed.

Prescriptive Easement

A prescriptive easement occurs when someone acquires easement over another’s land for a specific purpose. This differs from easement by necessity as the person acquiring the easement only uses the property for a set amount of time. Each state has specific statues that determine the length of time a person can use a prescriptive easement, and whether the person holding the easement is required to pay a portion of the property taxes on the land being used. A landowner may simply grant permission for the other individual to use the property on a limited basis, but if access is denied, the individual must file a claim of easement by prescription, allowing the court to make a ruling.

Public Easement

A public easement grants a certain defined area of land for public use. An example would be the granting of public access of a portion of the landowner’s property for a park or touring.

Easement by Prior Use

An easement by prior use is based on a notion that, on occasion, landowners intend to form an easement, but forget to include it within the deed. In this case, five elements are needed to establish an easement by prior use:

1. Common ownership of both properties at any one time
2. A severance of the properties
3. Use of easement before and after the severance
4. Notice of the easement
5. The easement is for necessary and beneficial use

For example, Bob owns two separate lots, one of which provides access to a public street, the other sits behind it. Bob’s driveway starts on the second lot and runs through the first lot to the public street. He sells the street-adjacent lot and forgets to specify the driveway area as an easement in the deed. Most likely, the court will determine Bob is entitled to an easement by prior use, as it is necessary for him to access his property from the street.

Easement Rights

An easement holder is entitled to do whatever is reasonably necessary to fully utilize the property for the purpose for which the easement was created. His rights under an easement do not allow, however, the imposition of an unreasonable burden for the property owner. The property owner may also use the land as long as such use does not interfere with the purpose of the easement.

Reasonable use of an easement may change over time as the property evolves and technology improves. If the court finds that use of an easement is not reasonable, and that the property owner is unduly burdened by the use, it can restrict the easement holder’s easement rights, or award the property owner damages. Conversely, if the court finds that the property owner is interfering with an easement, it may order the property owner to stop the action or remove any obstruction.

The following rights are recognized as easements, even if there are no official documents or agreements:

• Aviation Easement – the right to use the airspace over a property, flying above a certain altitude, where needed for spraying of property or other agricultural purposes.
• Storm Drain Easement – the right to install a storm drain to carry rainwater to a river, wetland, or other body of water.
• Sidewalk Easement – the right of the public to use sidewalks in front of a public area.
• Beach Access Easement – the right for neighboring residents to access a public beach, even if the access crosses private property.
• Dead End Easement – the requirement for a landowner to grant the public access to the next public way, even if such access crosses on his property.
• Conservation Easement – the right of a land trust to limit development, usually done for the purpose of protecting the environment.

Transferring an Easement

When considering a real estate transaction, easements must be taken into consideration, including the feasibility of transferring an easement. Some types of easements are transferred when a property changes hands, others are not. For example, an “appurtenant easement” remains part of the property, while “easements in gross” are considered rights of personal enjoyment granted by the original property owner. These types of easements may include access for camping, hunting, and fishing, among other activities. If the property in question changes hands, it is up to the new owner whether to continue to grant the easement.

Putting it simply, the difference between an appurtenant easement and an easement in gross is that the appurtenant easement is for the benefit of the land, while an easement in gross only benefits the individual to whom it is granted.

Duration of an Easement

In general, if the legal easement does not specify the length of time the easement will be in effect, the courts can assume it was created to last indefinitely. However, if the easement holder intends to use the land permanently, the duration of an easement should be specifically stated in the recorded deed containing the easement. In the case of an easement that specifies a termination date, the easement holder must stop use of the land on or before that date, or seek permission to extend the duration of the easement from the property owner.

Trespass Upon an Easement

Blocking a party who has an easement is considered “trespassing upon an easement,” an action for which the easement owner has a right to file a lawsuit. For example, placing a fence across a public path that sits on an easement may be considered trespassing upon an easement, even if the fence was placed by the property owner. In this case, the easement holder can take the property owner to court, which may then order the fence be removed.

Terminating an Easement

The act of terminating an easement requires the approval of the court. For a property owner to terminate an easement, at least one of the following facts must be proven in court:

• Both parties have agreed to the termination
• The easement has reached its expiration date
• The easement holder discontinued use the of property
• The need for the easement no longer exists
• The easement holder is creating a hostile use of the property
• The owner of an easement has died

If the property holder seeking to terminate an easement is unable to prove one or more of the required facts, the court may order him to continue allowing the easement holder to use the land in question until these facts can be proven.

Related Legal Terms and Issues

• Deed – a legal document drawn up and signed in regards to the ownership of real property.
• Obstruction – something or someone that prevents access or progress in some manner.
• Reasonable Use – using land or water in a manner that is legal and just.
• Severance – an action that ends a relationship or a connection.