Easement Basics

The term easement is often used, but some might be uncertain as to what it means. In real estate law, an easement is a property right that:

• Gives its holder (the dominant tenement) a limited legal right in land
• Is owned by someone else (the servient tenement)

It's common for people not to have a clear understanding of easements. Numerous legal problems can arise in their creation, interpretation, and implementation. State laws also affect private property easements differently depending on various factors. This article will provide some basic information, including:

• How easements are created and transferred
• The rights and remedies provided by easements
• Legal issues to consider when creating a legal document for an easement

You can use the links below to jump to specific topics in this article if you wish.

• Easements at a Glance
• Types of Easements
• Creation of an Easement
• Rights and Remedies Under an Easement
• Transferability
• Termination of Easements
• Easement Attorneys

Read on to learn what you need to know about easements.

Easements at a Glance

An easement is a nonpossessory property interest. It 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:

• Permanently occupy the land
• Exclude others from the land unless they interfere with the easement holder's use

In contrast, the property owner may continue to enjoy their real property. They may exclude everyone except the easement holder from the land.

Land affected or burdened by an easement is called a servient estate. Land or person benefited by the easement is known as the dominant estate. It is the responsibility of the dominant estate holder to maintain 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, the easement is known as in gross. Easements in gross do not run with a person’s land and thus do not pass to new owners in the future.

Types of Easements

Most types of easements are affirmative easements. This 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. This is accomplished by limiting what can be done on a neighboring or nearby property.

Easements may also be prescriptive, implied, or express. Prescriptive easements are made over time when someone gains a right of way that is continuous. This can come up under adverse possession.

Implied easements exist where it is reasonably necessary for neighboring properties to function as intended. Express easements are created by deeds or legal documents that set out the terms of the easement.

There are many categories of easements, each of which suits a different purpose. In general, private easements concern land use rights between two or more private parties.

Public easements benefit government interests for the public good. They include accommodation in private lands for public roads and utilities. For example, utility easements allow utility companies to run plumbing and power lines through the private lands of homeowners.

Creation of an Easement

Easements are usually created by a transfer in a deed. They may also be made through written documents such as:

• Wills in estate planning
• Private contract

Except as provided above with respect to implied and prescriptive easements, creating an easement requires writing. The writing involves the same formalities as the transferring or creating of other interests in land. It often requires:

• A legal document that describes the property ownership
• The specific purpose of the easement and the affected use of the property line
• Notarized signatures in most states
• Proper recording at the county clerk's office or register of deeds where the property is located

Like liens, recorded easements will show up during a title search.

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
• Easements implied from quasi-easements

Easements of necessity are often 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 their property for the benefit of another portion of their land.

Other methods of establishing easements include:

• Prescriptive use (the routine, adverse use of another's land)
• Easement by 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. This is as long as they do not place an unreasonable burden on the servient land.

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
• 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 property 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. This occurs even if transferability isn’t mentioned in the legal document. The document transferring the dominant estate may expressly provide that the easement shall not pass with the land. This may or may not be enforceable depending on the terms of the original easement and local laws.

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 may be permitted for commercial uses such as:

• Telephones
• Pipelines
• Transmission lines
• Railroads

There are other types of transfer of easement in gross.

Termination of Easements

Courts 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 providing that the easement is permanent.

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

• Construction work ends: Easements of limited duration 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. It may also be terminated when the holder of an easement releases their right in the easement (in writing) to the owner of the servient estate.
• Abandonment of an easement: As a general rule, not using an easement doesn't constitute abandonment.
• Misuse or sale of a servient estate: It's uncommon, but either of these may terminate an easement.

Condemnation of an easement by a public authority can also terminate it. This means the government can step in to end the easement as long as it is permissible under the law.

For instance, suppose a state condemns servient estate because of health safety concerns. The land may no longer be accessible given the priority of public health. This is for a purpose that conflicts with an easement that would otherwise allow access to that property. In this case, government action will terminate the existing easement.

Let an Attorney Ease Your Easement Concerns

The prevalence of easements and their nonpossessory nature creates a unique set of considerations. These considerations apply when creating, interpreting, and implementing an easement. It's essential to have a basic understanding of the way easements are created while considering their scope, transferability, and how they're terminated.

A real estate attorney with easement experience can help set you on the right path.