An easement is a property right that allows the easement holder to use another person's land for a particular purpose. There are all sorts of easements, and each creates specific rights and obligations depending on the nature of the easement. Therefore, prospective land owners must determine whether the land they want to purchase is subject to any easements before buying the land. Otherwise, you might be stuck with an easement running through your land that you do not want.
What is an easement?
Black’s Law Dictionary defines an easement as the right of someone to use the land of another for a specific purpose. The use of the easement must be consistent with the reason the easement exists. The parcel of land that has an easement running through it is known as the “servient tenement” and the land the easement benefits is called the “dominant tenement”.
Easements are more common than you might realize. Perhaps the most common easement is a utility easement. Utility companies typically have the right to run wires or pipe through your land whenever necessary. They also reserve the right to enter your land to repair or replace their equipment without your permission. However, the law of easements does not permit a utility company to take over your entire parcel or expand the easement without violating your rights as a landowner.
Another typical easement is a right-of-way. General principles of property law dating back centuries in England dictate that each parcel of land must have a route for ingress and egress. As a result, English common law imposed a right-of-way over a subservient tenement when an adjacent parcel had no route to a road. That custom continues in the U.S. today. Another example of a right-of-way easement is when a landowner grants another the right to pass over the land to access a beach. This is called an “easement in gross.”
Conservation easements are becoming more common. Conservation easements impose restrictions on a subservient tenement to protect sensitive wildlife areas and wetlands. Conservation easements prohibit use rather than grant someone permission to use a portion of the land.
How are easements created?
Easements are created in any number of ways. We addressed creating an easement by necessity briefly above. An easement by necessity is created when a landowner separates two parcels of land, and one parcel has no access to a road or public utility. The law creates an easement out of the necessity over the land that has access to a road or public utility for the benefit of the parcel that has no access to either.
Easements arise by express agreement or are implied by the conduct of the landowners. We looked at an express easement when we discussed beach access by crossing over a person’s land. An express easement came into existence when the beachfront property owner granted the landlocked owner access to the seashore across their property.
Property owners can grant an express easement in a deed. Memorializing rights to an easement in a deed ensures that future owners of the land containing the easement and all dominant tenements know their rights and responsibilities. Recording the easement in a deed also helps to quell — although not eliminate — potential legal disputes as well.
Easements arise by implication. An easement by implication arises when a landowner uses part of the land for passageway to a particular area and then divides the parcel. If the divided parcel does not have access to the area as it once did before the landowner divided it, then an implied easement arises to grant access as if the landowner never subdivided.
Some easements arise from use over the passage of time. An easement by prescription essentially starts off as trespassing over another person’s land. If, however, the landowner never objects and the use is open and obvious, i.e. not a secret, then the law may grant an easement by prescription. However, the use of the land must be continuous for the time-frame prescribed by law. State statutes govern the length of time required to grant a prescriptive easement.
Are easements transferable?
The answer depends on the type of easement you have. Some easements run with the land no matter who owns the land or when the easement was created. The law calls these easements appurtenant. The easement remains in place when the owner transfers title. However, some easements are strictly personal and extinguish when a new owner takes title to the land.
Using our examples from above, an easement by necessity is appurtenant to the land that needs access to a road. That easement will transfer with the land every time that parcel is sold. The deed for the land should contain a description of the easement. Conversely, access to the beach over a person’s land might be personal and would end when the beachfront property owner sells. Conservation easements will run with the property as well. Therefore, the new owners of the land will own the property subject to the conservation easement.
Are easements permanent?
Depending on the reason the easement exists, it may last in perpetuity. On the other hand, a personal easement is subject to end at any time. A property owner can grant an easement for a set amount of time. The parties should set forth the duration in a deed. Additionally, the owner of the dominant tenement can release the subservient tenement of the easement. Releases must be in writing and recorded in the county office or registry of deeds.
Easements may terminate by operation of law. The doctrine of merger states that if title to the subservient tenement and dominant tenement vest in one owner, then the two parcels merge. The merger extinguishes the easement. Similarly, an easement by necessity would end if the parcel developed is no longer blocked from accessing a road or public utility.
An easement holder can abandon the easement. There is no established time-frame that determines abandonment. However, abandonment is more than non-use. The easement holder’s conduct must imply an intention to abandon the easement. Evidence of abandonment might be the easement holder’s refusal to maintain the easement over several years. Further evidence of abandonment exists when the owner of the subservient tenement uses the easement in a manner that is inconsistent with the dominant tenement owners’ rights.
An easement holder cannot abuse the rights associated with an easement. That means an easement holder cannot use the easement in a way that is inconsistent with the nature of the easement, especially when the use burdens the subservient tenement. An example might be using a walking path in the woods over another person’s land for a motocross racing event.
The problems with easements.
Easements become problematic when owners sell their land, especially when no one records the easement in a deed. These disputes can result in protracted litigation. Similarly, the boundaries for an easement can be called into question. An easement holder might want to expand the easement over the objection of the owner of the subservient tenement. What happens then?
Repairing easements can be a huge problem as well. For instance, if pipes from one commercial building run through the basement of another and into the sewer line in the street erupt, then who bears the responsibility to repair them? The answer might seem obvious. However, circumstances might indicate otherwise. Alternatively, public utilities will repair any damage to your property caused by their equipment.
When should you hire a qualified real estate lawyer to help you?
You should have an attorney review all of the deeds involved in a real estate purchase before committing to buy the land. You could also have a title insurance company perform a title search. However, the title search company will only point out “clouds” on the deed. They will not help you clear them like a lawyer can. A physical inspection of the subject property and a boundary survey is recommended if there is evidence that others might have access to your land once you buy it. Additionally, a lawyer can help you negotiate creating or extinguishing an easement as well as draft a deed memorializing the agreement.
You will need a lawyer to file a lawsuit for you if you want to extinguish an easement. As the moving party, you have the burden to prove your case. A qualified real estate lawyer could help accumulate the necessary evidence to help you win your case in court.
As a landowner, you should know about all easements that concern your land. Seeking the advice of an experienced real estate attorney could help you avoid numerous legal problems.