An easement is a legal term used within real estate law that describes an agreement that the current owner of a property has with another party to utilize the property. Easement
Easement
An easement is a non-possessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". It is similar to real covenants and equitable servitudes; in the United States, the Restatement (Third) of Property takes steps to merge these concepts as servitudes.
What is the legal definition of an easement?
The legal term “easement” refers to the legal right to use another person’s real property, for a specific purpose and a specific amount of time. An easement gives a person the legal right to go through another person’s land, as long as the usage is consistent with the specified easement restrictions.
What are the 4 types of easements?
For an implied easement to exist, the following three conditions must exist:
- The owner of one property conveys a portion of that property to another;
- The owner used the property in such a way that the parties believed or intended that the use would continue after the portion of the property was conveyed; and
- The implied easement is necessary for the buyer of the portion of the property to use and enjoy his land.
What are the requirements for an easement?
- Utility easements
- Prescriptive easements
- Easement by necessity
- Private easements
- Stormwater management or development easements 1
What rights does an easement holder have?
They give the easement holder an affirmative right – the right to travel over the easement or the right to have utilities or swales on the easement. In areas of the country with high density high rises or expensive beachfront properties, there are easements which give the easement holder view, solar, light, and air rights over and across the properties of others.
What are the three types of easements?
There are several types of easements, including:utility easements.private easements.easements by necessity, and.prescriptive easements (acquired by someone's use of property).
What is an easement in simple terms?
An easement is the grant of a nonpossessory property interest that grants the easement holder permission to use another person's land.
What is an example of easement?
An easement is a limited right to use another person's land for a stated purpose. Examples of easements include the use of private roads and paths, or the use of a landowner's property to lay railroad tracks or electrical wires.
Can I put a gate across a right of way?
The legal test in the case of alleged obstructions, put simply, is: "can the right of way be substantially and practically exercised as conveniently as before?" The answer in most cases is that a single unlocked gate will not normally be held to be a substantial interference.
What is an easement in real estate?
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.
How are easements created?
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, and proper delivery of the document.
What is the right of an easement holder?
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.
What is an easement created by implication?
Two common easements created by implication are easements of necessity and easements implied from quasi-easements.
What is an easement in gross?
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.
What is the termination of an easement?
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 lack a clear understanding of easements and the numerous legal problems that can arise in their creation, interpretation, and implementation.
When is an easement terminated?
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.
What is 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.
What is an easement for a driveway?
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 ...
What happens if a court finds that an easement is not reasonable?
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.
What are the rights of an easement holder?
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.
What is a 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.
What is an express easement?
Defining the exact location, nature, and purpose of an easement in a deed or other legal document creates an “express easement.”.
What is a legally binding easement?
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 ...
What is an easement?
Easement. An easement is the grant of a nonpossessory property interest that grants the easement holder permission to use another person's land. There are different kinds of easements. If an easement appurtenant is granted, it involves two pieces of land, where one serves as the servient tenement that bears the burden, ...
What are the two types of easements?
There are two types of easements: affirmative and negative . An affirmative easement gives the easement holder the right to do something on the grantor of the easement's land, such as travel on a road through the grantor's land.
What is negative easement?
A negative easement, on the other hand, allows the easement holder to prevent the grantor of the easement from doing something on his land that is lawful for him to do , such as building a structure that obscures light or a scenic view. Easements can be created in a variety of ways.
Can an easement be terminated?
Additionally, easements can also be terminated. An easement can be terminated if it was created by necessity and the necessity ceases to exist, if the servient land is destroyed, or if it was abandoned. wex. PROPERTY.
What are easements in real estate?
Common examples of easements include the right of a property owner who has no street front to use a particular segment of a neighbor's land to gain access to the road, as well as the right of a Municipal corporation to run a sewer line across a strip of an owner's land, which is frequently called a right of way.
What was the purpose of easements?
The easement was normally for the benefit of adjoining lands, no matter who the owner was (an easement appurtenant), rather than for the benefit of a specific individual (easement in gross).
What is an easement in gross?
An easement in gross is not appurtenant to any estate in land. It arises when a servient piece of land exists without a dominant piece being affected. This type of easement is ordinarily personal to the holder and does not run with the land.
How are easements created?
There are various ways in which easements are created. An express easement is clearly stated in a contract, deed, or will. An easement by implication occurs when the owner of a piece of land divides such land into smaller pieces and sells a smaller piece to another person, retaining a right to enter such piece of land.
What is an easement appurtenant?
An easement appurtenant attaches to the land permanently and benefits its owner. In order for it to exist, there must be two pieces of land owned by different individuals. One piece, the dominant estate or tenement, is the land that is benefited by the easement. The other piece, known as the servient estate or tenement, ...
What is an easement by prescription?
An easement by prescription arises through an individual's use of land as opposed to the possession thereof.
What is an affirmative easement?
An affirmative easement entitles the holder to do something on another individual's land, whereas a negative easement divests an owner of the right to do something on the property. For example, the owner of land might enter into an agreement with the owner of an adjoining piece of land not to build a high structure that would obstruct ...
Types of easements
Easements come in many forms. Here are some of the most common you may encounter:
Right of way easement
This is where a neighbor may need to pass through the property via a driveway to access the main road. Or, say Property A and Property B share a driveway. “It’s primarily located on Property A’s land, but it splits and also goes off to Property B’s land.
Utility maintenance easement
This easement is typically granted to utility companies to run power and cable lines on a property.
HOA or condominium easement
If you live in a condo or home managed by a homeowners association, odds are these institutions own much of the property—or at least the public areas—while residents have rights to pass through.
How is an easement created and dissolved?
Easements are created when property owners are approached for permission to use their land. If an agreement is reached, it will be set in stone with a legal document such as a deed. While the homeowner who originally grants the easement may be compensated, subsequent homeowners typically are not, although the length of an easement may vary.
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What is an easement?
An easement is the legal right of a non-owner to use a specific part of another person’s land for a specific purpose. B. What are the purposes and benefits of easements? Easements are used to provide non-owners with rights of ingress, egress, utilities, and drainage over a specific portion of another’s land.
How are easements created?
They can be created in deeds, easement agreements, subdivision declarations, and condominium declarations, all of which are recorded in the land records (the “Public Records”), just like deeds and mortgages. The better practice is to create an easement using an agreement or declaration, rather than a deed, because easements created in deeds typically do not adequately address all of the issues pertaining to easements. Whatever document is used, it must be executed before two witnesses and a notary public.
What is an egress and an ing?
Ingress and egress are terms for the easement right to travel to and from a property over the lands of another – they provide pedestrian and/or vehicular access. Utilities include electric power, telephone, cable television, internet, natural gas, water, wastewater, reclaimed water, and sewer services.
How long do appurtenant easements last?
Easements in gross, however, unless they are utility easements given to companies that provide such services, typically only last as long as the individual benefited by them is alive or otherwise uses the easement. However, all easements can be limited to a certain period of time, according to their terms.
How to terminate an easement?
The easement holder may unilaterally terminate the easement by executing, delivering, and recording a written release of the easement or a quit claim deed conveying the easement back to the owner of the servient estate.
What is an easement in a subdivision?
In subdivisions, easements in the subdivision’s declaration of protective covenants are what provide homeowners with the rights to use the subdivision’s common areas – parks, clubhouses, pools, playgrounds, tennis courts, walking paths, horse trails, private roads, etc. C.
What happens if a right of way line and boundary line do not coincide?
If a boundary line of the property being purchased and a right-of-way line do not coincide, the buyer needs to be certain that the property being purchased has an easement giving the buyer the legal right to cross over whatever property lies between the property being purchased and the public road.
What is property easement?
A property easement is a legal situation in which the title to a specific piece land remains with the landowner, but another person or organization is given the right to use that land for a distinct purpose. For example, a utility company may have an easement that allows them access to an electrical pole on your property. ...
When is an easement created?
It’s usually created when the only reasonable and practical access to the property is through another’s property and an implied agreement cannot be reached. Once there is a new way to access the property (for example, if a new road or path is created), the easement can be terminated.
What is an easement appurtenant?
An easement appurtenant is a property easement that is not limited to a period of time or property owner but is instead, tied to the property itself. An easement appurtenant is often referred to as “running with the land,” as it remains in place even when the owners change. It’s an easement that benefits the property. An example of an easement appurtenant is a property that offers the only access to a private beach shared by two neighbors. When the home is sold, the new owners must allow their neighbors access to the beach via their property because the easement stays with the home.
What is the difference between a private easement and a public easement?
A private easement is one that grants land-use rights to certain people, whereas a public easement grants those rights to the general public. An affirmative easement allows someone to do something on the property, while a negative easement forbids it. Apply for a Mortgage with Quicken Loans®.
Why do utilities have easements in gross?
Utility companies often hold easements in gross to be able to build and maintain powerlines on or near a person’s property. Typically, the companies will have an easement in gross to use the property to access these lines. A more personal example of an easement in gross could be one that allows a friend to use your property for hunting ...
What is an easement by prescription?
Easement by prescription, also referred to as a prescriptive easement, is created when a person continuously uses another’s land for a long period of time as if they had an easement. To get an easement by prescription, the following criteria must be met: Continuous use for a specific period of time.
What is a servient estate?
A dominant estate is the party that benefits from the easement, the party that can use the other’s property. A servient estate is the party that suffers the burden , or, in other terms, ...
What is an easement on a property?
An easement gives a person or organization a legal right to use someone else’s land—but only for a needed purpose . A utility company may have an easement on your property to access an electrical pole. Or if your driveway overlaps your property line, you might rely on an easement on your neighbor’s property to get to your garage.
What is property rights easement?
The property rights an easement allows depends on the rules of your specific easement. There are many types, but these are some of the features that help define them: Appurtenant versus gross easements: An appurtenant easement allows a property owner access to land that’s only accessible through a neighbor’s land.
What do you need to know about easements when buying a home?
Does this property have easements? Legally, sellers must disclose easements on their property during the sale, so you should know if an easement exists by the time you have a purchase agreement, if not sooner.
What is a prescriptive easement?
Prescriptive easement: Prescriptive describes the way in which an easement comes into being. This is when someone is using a property owner’s land regularly for a certain period of time (set by state law) without being restricted by the owner. This is commonly known as “squatter’s rights.”. 3.
Can an appurtenant have a private easement?
Public versus private: Both appurtenant and gross easements can grant access to public or private entities or properties. A private easement might allow a neighbor to access your property, and a public one might allow any member of the public to walk through your yard.
Do easements expire?
If the easement holder agrees to terminate, it could be a smoother process. And in some cases, easements have an expiration date (this would be stated in your deed), so that could be good news. Other cases are challengeable, but harder. For instance, if there’s a prescriptive easement that’s not in continuous use ...
Is an easement good or bad?
Found out the home you’re planning to buy has an easement on the property? That could be a good thing, a bad thing, or an entirely neutral thing. Here’s what easements are, and how they affect your property rights.
Table of Contents
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 ma...
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, and proper delivery of the document. In limited cases, a court will create an easement by implying its existe…
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 easemen…
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 transferabl…
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 terminatedin a number of ways. These are some of the ways easements can be terminated 1. 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. 2. One owner buys the other out. An ease…
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 attorneywith easement experience can help set you on the right path.