What is an Easement

An easement grants the legal right to use the land of another person for a specific, limited purpose. The holder of the easement gains the right to use the other person's land or to restrict the other person's use of the land that is subject to the easement.


Types of Easement

An easement may be an affirmative easement or a negative easement, depending upon the nature of the rights and restrictions formalized by the easement. An easement may also be an easement appurtenant or an easement in gross, depending upon whether it benefits another parcel of land or another person or entity.

Affirmative Easements vs. Negative Easements

There are two basic types of easement, affirmative and negative:

  • Affirmative Easements: Affirmative easements grant the easement holder the right to do something on the land that is subject to the easement.

  • Negative Easements: Negative easements grant the easement holder the right to prevent the owner of land from engaging in otherwise lawful activity on that land.

A common affirmative easement is an easement for a right-of-way, that allows the owner of the dominant estate to use the servient estate for purposes of ingress and egress. A common negative easement is an easement that preserves the rights to a view, or to light and air, limiting the right of the owner of the servient estate from erecting any structures that block the view or the passage of natural light to the dominant estate.

Easement Appurtenant

An easement appurtenant involves at least two parcels of land, the dominant estate and the servient estate:

  • Dominant Estate: The dominant estate holds the right to exercise easement rights on the land of another.
  • Servient Estate: The servient estate is subject to the rights of the dominant estate.

For example, if an easement creates a right-of-way over a front parcel of land in order to reach a separate rear parcel, the front parcel is the servient estate, as it is subject to the easement, and the rear parcel is the dominant estate, as it benefits from the easement.

Easements may involve more than two parcels of land, and may involve multiple dominant and servient estates. For example, a private road that serves eight homes may pass over areas of land that are owned by each of the eight homeowners. All homeowners have the rights of a dominant estate holder to use the right-of-way for purposes of ingress and egress. All homeowners are also servient estate holders for the portions of their properties that are subject to the right of way.

An easement is a nonpossessory interest in land, meaning that it allows the beneficiary of the easement to use or control land that the beneficiary does not own or possess. However, the easement holder may not exclude others from the easement unless their activities unreasonably interfere with the holder's use of the easement.

Easement in Gross

An easement in gross grants easement rights to a specific individual or entity.

For example, an easement in gross may allow a person or group to use a wildlife trail or pier on the land of another, even though they don't own adjacent land. Similarly, most utility easements are easements in gross.

How is an Easement Created

Easements may be created by a grant, with the owner of the servient estate intentionally granting an easement to the dominant estate or holder of the easement. Easements may also be created by implication, or by virtue of a long-term, otherwise unauthorized use of the land of another.

Granted Easements

Most easements are created by a grant. For example, the owner of a parcel of land may sell an easement to a neighboring property owner for a right-of-way, or neighbors may create an easement for the construction and maintenance of a shared driveway that sits on the property line. Easements may also be created when land is subdivided, for example, to allow for the presence of roads and installation of utilities, or for the use of common areas by people who purchase land within a subdivision.

If an easement is granted but does not specify the exact dimensions or location of the easement on the servient estate, the easement is known as a floating easement. Once easement rights are exercised, the location of the easement may become fixed by virtue of the parties' practices.

Implied Easements

An implied easement may exist even where there is no formal grant or conveyance of an easement, based upon inferences from the historic use of the property and the intention of the original owner or owners. A court must recognize the valildity of an implied easement before it may be recorded.

For example, if the owner of a large parcel of land splits the parcel and conveys a rear, landlocked parcel but fails to convey an easement for ingress and egress to the rear parcel, a court will normally find an implied easement for a right-of-way. Recognizing an implied easement is normally consistent with the intent of the parties when land is divided, as few people knowingly create or acquire landlocked properties. Recognition of the easement may also advance the interest of the public by ensuring that land can be put to an appropriate use.

Easements by Necessity

An easement by necessity arises when the easement is absolutely necessary to the use and enjoyment of a landlocked parcel of land. An easement by necessity may be implied or express.

  • Implied grant of an easement: When a property owner sells an otherwise landlocked parcel of land, while retaining ownership of adjacent land, an easement of necessity is created through an implied grant of access. Access is deemed granted to the landlocked parcel over the retained lands of the seller, even if the deed conveying the property omits any grant of access rights.
  • Express reservation of an easement: When a property owner sells land while retaining a parcel of land that becomes landlocked as a result of the sale, the property owner may expressly retain an easement by necessity. Some states will allow the seller to claim an implied easement, but others will deny the seller an easement by necessity unless seller expressly reserves the easement.

The degree to which a property owner must prove necessity varies to some degree by state.

  • Strict necessity: Most states require proof of strict necessity, meaning that to obtain an easement by necessity it must be completely landlocked, even if it would be burdensome or expensive to gain access to the land without the recognition of the easement.
  • Reasonable necessity: Some states require proof of reasonable necessity, allowing a court to find an by necessity only when the owner of the property cannot otherwise reasonably gain access to a public road.

An easement by necessity lasts only as long as the necessity continues to exist. For example, if the landlocked parcel becomes accessible through a new public road, an easement by necessity will terminate based upon the fact that the property owner can access the land through the road.

Prescriptive Easements

An easement by prescription is created when a dominant estate has used the servient estate for an extended period of time, without permission and without regard for the rights of the owner of the servient estate. To establish a prescriptive easement, the person asserting easement rights must prove elements similar to those required as proof of adverse possession:

  1. The use was actual, open and notorious, meaning that the use occurred and was reasonably observable by others;
  2. Use was continuous, consistent with the nature of the claimed easement.
  3. Use was hostile to the rights of the owner of the servient estate meaning that the use was inconsistent with the owner's property rights.
  4. Use continued for the statutory period, the statute of limitations applicable to actions to recover real property.

Unlike in an adverse possession claim, use for a prescriptive easement need not be exclusive. For example, a claim of a prescriptive easement for ingress and egress would involve a right to pass over the land of another, but would not claim any further right to exclude the property owner from using the same land in a manner that does not unreasonably interfere with its use as a right-of-way.

Encroachments

At times, easement rights may be created in response to an encroachment, the unauthorized use of or intrusion upon the land of another.

For example, a builder might construct a home that overhangs an adjacent parcel of land. The owner of the adjacent parcel may seek to have the encroachment removed under principles of trespass. However, if a court finds that it would be unreasonable to remove the encroachment due to the high cost involved relative to the impact that the encroachment causes on the adjacent land, the court may allow the encroachment to continue for the useful life of the home.

The owner of the affected property will normally be awarded reasonable compensation for the continued encroachment.

Easement Rights and Duties

The rights and duties of the dominant estate and servient estate may be defined by the grant of an easement. If the parties have not modified their rights through the grant of the easement, their rights and duties will generally be as follows:

Rights and Duties of the Easement Holder

The rights of an easement holder vary depending upon how the easement was created:

  • The holder of an easement in gross, or the owner of a servient estate, has the right to use the easement in a manner consistent with the granting language.
  • For an implied easement, use of the easement must be consistent with the reasonable intention of the parties, and may be reflected in the historic use of the properties.
  • For an easement by prescription, the rights of the easement holder are consistent with the manner in which the easement was used over the course of the statutory period.

Absent an agreement to the contrary, the holder of an easement may use the property in a manner consistent with the grant and past practices. The holder may maintain the easement, such as by clearing obstructions and filling holes in a right-of-way. However, the holder may not make improvements that were not contemplated by the grant of an easement, or that are not consistent with past practices, such as by laying an asphalt surface on what had historically been a graveled drive.

Rights and Duties of the Servient Estate

Most easements are non-exclusive, meaning that the owner of the servient estate can use the land that is subject to the easement in any manner as long as the use does not unreasonably interfere with the easement.

If the easement is exclusive, the owner of the servient estate may be restricted from using the land over which the easement runs. For example, an easement that grants the right to run high voltage lines or railroad tracks across land will normally exclude the owner of the servient estate from making any use of the area surrounding the utility lines or railroad tracks.

The owner of a servient estate will not ordinarily have any obligation to maintain the easement for the benefit of the dominant estate. However, if the servient estate benefits from the easement, the dominant estate may have grounds to ask for contribution to the cost of maintenance. For example, if the right-of-way gives the dominant estate non-exclusive access to a drive that is also used by the owner of the servient estate, the owner of the servient estate may be required to assist with or contribute to the cost of maintenance of the drive.

Transferring an Easement

Most easements appurtenant are transferable.

  • When the dominant estate is sold or conveyed, the easement normally transfers for the benefit of the new owner.
  • Some easements are drafted to be personal to the grantee, meaning that they cannot be transferred to others. If the grantee passes away, sells or otherwise conveys the property, the easement is terminated.

Most easements in gross are not transferable. However, the transfer of easements in gross that are created for commercial purposes, such as utility easements, easements for pipelines, and easements for railroad tracks, are normally transferrable.

Terminating an Easement

Unless the grant of an easement provides otherwise, courts will normally find that the parties to an easement intended the easement to continue indefinitely.

An easement may be terminated in a number of ways, including:

  • Abandonment: If an easement is unused for many years, it may be possible for the servient estate to seek a court order that deemed it abandoned under principles of nonuser. Where an easement is created by grant, mere nonuse will not ordinarily constitute abandonment.
  • Condemnation: If the servient estate is taken under principles of eminent domain, the taking will normally terminate any easements that affect the land. The owner of the dominant estate will be entitled to compensation.
  • Destruction of the Servient Estate: If the servient estate is destroyed, as might happen with a shoreline property that erodes into a body of water, the easement will terminate.
  • End of Necessity: If an easement is created by necessity and the necessity ceases to exist, as might happen if a public road is constructed that gives access to a formerly landlocked property, the easement may be terminated.
  • Expiration: An easement may be negotiated to last for a specified period of time or until a specific event occurs, and expire at the conclusion of that agreed period.
  • Foreclosure: If an easement is created after a lienholder registers a security interest for the servient estate, foreclosure by that lienholder will extinguish the easement.
  • Quiet Title: The owner of the servient estate may bring an action to quiet title, asking a court to clarify ownership rights for the land. A quiet title action may request that a court rule on the existence of an easement and, if the court finds a basis to do so, the court may terminate an easement or find that a person claiming an easement has not presented a valid claim.
  • Release: The owner of the dominant estate and the servient estate may agree to terminate the easement through a written agreement, consistent with the statute of frauds.
  • Termination by Merger: For an appurtenant easement, if the dominant and servient estates fall under common ownership, that will normally cause the easement to be extinguished based upon the merger of the properties.
Copyright © 2018 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 14, 2018.