Easement Basics

Table of Contents

• Easements at a Glance
• Creation of an Easement
• Rights and Remedies Under an Easement
• Transferability
• Other Legal Issues to Consider
• Termination of Easements
• Easement Attorneys

An easement is a property right that gives its holder an interest in land that's owned by someone else. It's common for people to not have a clear understanding of easements and the numerous legal problems that can arise in their creation, interpretation, and implementation.

Luckily, you've come to the right place. This article will provide some basic information about easements including how easements are created and transferred. In this article, you can also find out about the rights and remedies provided by easements and the legal issues to consider when it comes to easements.

Easements at a Glance

An easement is a "nonpossessory" property interest that allows the holder of the easement to have a right of way or use property that they do not own or possess. An easement doesn't allow the easement holder to occupy the land or to exclude others from the land unless they interfere with the easement holder's use. In contrast, the property owner may continue to use the easement and may exclude everyone except the easement holder from the land.

Land affected or "burdened" by an easement is called a "servient estate," while the land or person benefited by the easement is known as the "dominant estate." It is the responsibility of the dominate estate holder for maintenance and upkeep of the easement. If the easement benefits a particular piece of land, it's said to be "appurtenant" to the land. If the easement only benefits an individual personally, not as an owner of a particular piece of land, the easement is known as "in gross."

Most types of easements are affirmative, which means that they allow the use of another's land. Less common are negative easements, which usually involve preserving a person's access to light or view by limiting what can be done on a neighboring or nearby property.

Creation of an Easement

Easements are usually created by a transfer in a deed or some other written document such as a will or contract. Creating an easement requires the same formalities as the transferring or creating of other interests in land. It typically requires a written document, a signature, in the majority of states a notary seal is required, and proper recording at the county clerk's office or register of deeds where the property is located.

In limited cases, a court will create an easement by implying its existence based on the circumstances. Two common easements created by implication are easements of necessity and easements implied from quasi-easements. Easements of necessity are typically implied to give access to a landlocked piece of property. Easements implied from quasi-easements are based on a landowner's prior use of part of his or her property for the benefit of another portion of his land.

Other methods of establishing easements include prescriptive use (the routine, adverse use of another's land), estoppel, custom, public trust, and condemnation.

Rights and Remedies Under an Easement

As a general rule, an easement holder has a right to do "whatever is reasonably convenient or necessary in order to enjoy fully the purposes for which the easement was granted," as long as they do not place an unreasonable burden on the servient land. On the other hand, the owner of the servient land may make any use of that land that does not unduly interfere with the easement holder's use of the easement. What constitutes an undue burden depends on the facts of each individual situation.

If a court determines that a servient estate is unduly burdened by unreasonable use of the easement, the owner has several potential legal remedies. These include court orders restricting the dominant owner to an appropriate enjoyment of the easement, monetary damages when the easement holder exceeds the scope of their rights and damages the servient estate, and in some cases termination of the easement.

Likewise, remedies exist for interference by the servient owner. Interference with an easement is a form of trespass, and courts frequently order the removal of an obstruction to an easement. If interference with an easement causes a reduction in the value of the dominant estate, courts may also award compensatory damages to the easement holder.

Transferability

In general, an easement appurtenant is transferred with the dominant property even if this is not mentioned in the transferring document. But the document transferring the dominant estate may expressly provide that the easement shall not pass with the land.

Because easements in gross are treated as a right of personal enjoyment for the original holder, they are generally not transferable. However, several states have enacted statutes designed to facilitate the transfer of easements in gross. The transfer of easements in gross for commercial uses such as telephones, pipelines, transmission lines, and railroads is often permitted.

Other Legal Issues to Consider

Courts generally assume easements are created to last forever unless otherwise indicated in the document creating the easement. Despite this, an individual granting an easement should avoid any potential problems by expressly providing that the easement is permanent.

Termination of Easements

Although permanent easements are the norm, they can be terminated in a number of ways. These are some of the ways easements can be terminated

• Construction work ends. Easements of limited duration commonly used to provide temporary access to a dominant estate will be terminated upon the completion of construction work.
• One owner buys the other out. An easement may be terminated when an individual owning the dominant estate purchases the servient estate, or when the holder of an easement releases his or her right in the easement (in writing) to the owner of the servient estate.
• Abandonment of an easement can also extinguish the interest, but as a general rule just not using an easement doesn't constitute abandonment.
• Under some circumstances, misuse or the sale of a servient estate may terminate an easement.
• Finally, condemnation of an easement by a public authority, or condemnation of the servient estate for a purpose that conflicts with the easement, terminates an existing easement.

Let an Attorney Ease Your Easement Concerns

The prevalence of easements and their nonpossessory nature creates a unique set of considerations when creating, interpreting, and implementing an easement. It's essential to have a basic understanding of the way they're created, their scope and transferability, and how they're terminated. A real estate attorney with easement experience can help set you on the right path.