What is an Easement?

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In the simplest terms, an easement is a legal right someone has to use another person’s property for a particular reason. Even though the title of the home is still yours, other parties might hold easements on your property, which gives them the right to trespass it for a specific purpose. While some easements you will hardly notice, other types can affect your day-to-day life, such as a neighbor passing through your yard to access their own property. That is why, if you are in the process of buying a house, it is important to look if it has any easements.

What You Should Know

  • An easement is a right someone has to access or use another person’s property for a specific purpose
  • The property whose owner has the benefit of accessing the other property is called the dominant estate, while the property that is being accessed is called the servient estate
  • There are three main types of easements that are most common: easement appurtenant, easement in gross and prescriptive easements
  • Easements can affect the use and enjoyment of your property, so make sure you research the easements on a house before purchasing it

Parties Involved

In an easement, there are usually two parties involved, the party that has the right to access the property and the party that has the obligation to allow access to its property.

Dominant estate - This is the property whose owner has the right to access the other piece of property. It is said that the dominant estate has an easement over the other estate. The dominant estate’s owners benefit from the easement since they get to access and use the other property. Even though the dominant has no legal ownership of the other property, it has the legal right to access or use it. This is also called the “right of way”.

Servient estate - This is the property that is being accessed by the dominant estate owners. As the name suggests, this property ‘serves’ the dominant property. It is subject to the easement held by the dominant estate and it is the one that is ‘burdened’ by the others’ use of its property.

Example: Easement

Imagine that you live in a house that is right next to the main road. You can access the road whenever you want as it is right in front of you. However, your neighbor’s house is behind yours. There is no way for them to access the main road unless they pass through your property. Therefore, the neighbor holds an easement that permits access to your property for the purpose of getting to the main road.

In this scenario, your neighbor’s property is the dominant estate and your property is the servient estate.

Types of Easements

There are different types of easements that are used to serve a variety of situations and have different specifics in terms of when they should be used, the right and responsibilities of the dominant and servient estate, and when they can be transferred.

Easement Appurtenant

An easement appurtenant is mostly present in the cases where two neighboring properties share an adjacent parcel of a property. Easement appurtenant stays with the property. From the name “appurtenant”, which means “attached to”, these types of easements are attached to the property and do not have a period of time, after which they expire. Easement appurtenant stays in place even when the owners of the properties change and it should be included in both properties’ deeds. Let’s take an example of an easement appurtenant.

Imagine that the neighborhood has a park where its residents can enjoy spending their afternoons. Some of the properties in the neighborhood cannot access the park directly and their only option would be to pass through the property that is blocking their access to the park. In this case scenario, the houses that cannot access the park are the dominant estates that hold easements toward the houses that are blocking this access, which are the servient estates. When the owner of one of the houses that do not have direct access sells the property, the new owner will still be able to enjoy the benefits of the easement appurtenant.

Easement by Necessity

A subcategory of easement appurtenant is the easement by necessity. This is used in those cases where the reason for crossing another person’s property is more serious than simply wanting to access the neighborhood park. Even if they are not recorded, easements by necessity can still be legal if there is enough evidence to support the dominant estate’s need for the easement.

For example, the scenario we talked about in the beginning to explain easements covered how an easement was needed for the owner of the house in the back to be able to access the main road. Contrary to the park, access to the main road is a necessity. So the dominant property should have the right to access the driveway of the servient property simply for the purpose of getting to the main road.

Easement in Gross

Different from other types of easements, an easement in gross involves only one property, the servient estate. The dominant estate is represented by a person or entity that benefits from the easement in gross. Utility easements are included in this category.

For example, if there is water, sewer, power lines, phone, gas, cables in your private property, the utility company will need to access your property whenever there are issues with one of the mentioned utility services or whenever improvements need to be made. Therefore, the utility company holds an easement towards your property. However, this benefits you as well because if there is a power outage and the electric company needs to access your property in order to fix it, you will want the power to come back on as well.

Moreover, the utility company can also hold easements that prevent you to make changes in your property in a way that interferes with their easement. For example, you might be forbidden from building something on your property that would restrict an electric company’s access to the power lines.

An example of a more personal use of an easement in gross is when your neighbor is allowed to use your boat ramp in order to move his boat in and from the water.

Contrary to easements appurtenant, easements in gross are not attached to the property and cannot be transferred. For example, if the owner of the servient estate sells the property, the new owner has the opportunity to accept or deny the easement in gross. However, if you deny a utility easement, you might be sued by the utility company. Likewise, the person or entity who holds the easement in gross does not have the right to transfer the easement. Connecting this to the example above, the neighbor cannot transfer the right to use the boat ramp to the new owner, and the servient property owner’s consent is needed for the utility company to transfer its right to use the property to another entity.

Prescriptive Easement

This type of easement covers the scenario when a person uses another person’s property for a long period of time without permission or an easement and then is granted a prescriptive easement to continue using the property. This is a bit ironic since it basically means that if you trespass for a long period of time, you might be granted the right to do so legally. There are a few conditions that have to be met for someone to be granted a prescriptive easement:

  1. Use of property for a long period of time - You can only be given a prescriptive easement if you have used the property for many years uninterruptedly. Different states have different periods of time for this criterion. For example, New York asks you to prove that you have accessed the property for at least 10 years, while Florida requires 20 years of use, and California only 5 years.
  1. Open and notorious use - You should have used the property in an obvious way, not in secret. Since if the act was done in secret, there is no proof that the owner of the property has known about this and has allowed it to happen for several years.
  1. Hostile use - You must have used the property without the owner’s permission.
  1. Exclusive use - You cannot have been using the property at the same time that the owner was using it. Some states do not have this requirement.

If you suspect that someone is accessing your property without permission, it is important to act quickly, because if you put off taking action against them, you might lose your chance to stop them altogether if they get a prescriptive easement. This will also affect future owners of the property who might not be able to terminate the prescriptive easement.

For example, if your neighbor has been using your driveway to park your car for several years and you have been aware of it and have not taken any steps to prevent the neighbor, they might be able to get an easement by prescription upon fulfilling the necessary requirements. In this case, if you later try to sue them, you might lose.

Historic Preservation and Conservation Easements

Some properties might hold significant historic value and the owners of these properties may not be allowed to modify them in a way that decreases their historic significance. This is done through historic preservation easements.

On the other hand, to protect and preserve a piece of land so it is not developed, there are conservation easements. While owners of these types of properties and land can find the easements bothersome, it is not all bad news. The owners may be able to get tax breaks. The tax benefits can come in the form of a deduction on your federal income taxes, lower property taxes, and lower estate taxes if your heirs inherit the home.

Affirmative vs Negative Easements

Most easements can be grouped into two categories: affirmative and negative easements. Affirmative easements give the easement holder the right to do something and most of the easements we have talked about so far have been affirmative easements. On the other hand, a negative easement is a promise not to do something. This is useful in the cases where the changes someone makes to their property affect how someone else can enjoy their own property.

For example, imagine that you bought a house near the beach and there only is a one-storey house in front of yours, which means that you still get to enjoy the view. However, what happens when the owner of the house in front of you decides he would like to build a couple more storeys on top of his existing one? This way, the view of the beach that made you buy the house in the first place is now completely blocked. Negative easements exist so that property owners are not allowed to make these changes to their properties.

Private vs Public Easements

The difference between private and public easements is in the party that benefits from the type of easement. In the case of a private easement, you are giving a specific person or estate the right to use or access your property for a specific reason, while in public easements, the general public benefits from the easements.

You can create and sell private easements since they are essentially a property right. But you must think carefully before making this decision as the easement may affect future owners. Public easements, on the other hand, are usually issued by the government to extend public areas or make them easier to access. The owners of the servient estates, in this case, can even be compensated by the government for allowing access to their property.

How to Create an Easement?

Depending on the type of property one has, the reason for the easement, and the relationship with the other party, one can create an easement in several ways:

Express Easement - This is the most popular way of creating an easement. It involves a deed or will that is signed by the two parties laying out all the terms and conditions. An express easement avoids legal disputes down the road since the parties are aware of their rights and responsibilities since the beginning.

Implied Easement - Implied easements are not in the form of writing. They are created on the occasions when it is common sense that there needs to be an easement for the dominant estate to use the property. In the initial example of the neighbor’s property being landlocked with no access to the main road, it is obvious that they need to pass through your property.

Easement by Necessity - As we mentioned earlier, an easement by necessity is created by law when there is a concrete need to access someone’s property. Easement by necessity is used in cases where an implied easement cannot be reached by the two parties. The easement by necessity will terminate once there is not a need for it anymore. For example, if a new road was built next to your neighbors’ house, so they no longer need to pass through your property.

Easement by Prior Use - This easement is created in the scenario where someone owns a piece of land and then chooses to separate the land in two and sell one of them. However even though this owner intends to create an easement, they forget to include it in the deed. In this case, the new owner of that piece of land can be granted an easement by prior use, if the following is proved:

  1. Ownership of both properties at a time - The seller must have owned both properties at a time.
  2. Severance unity - The seller must have divided the land in two and sold one of them.
  3. Prior use - Prior to selling the land, the seller must have used one of the properties in a way that benefited the other property and in a way that if the lands were owned by different people, an easement would be needed.
  4. Reasonable necessary use - Different from easement by necessity, strict necessity does not have to be proved in this scenario. In an easement by prior use, the new owner only has to prove that the prior use contributed to the convenience and enjoyment of the land.
  5. Apparent use - There must be proof that the prior use was apparent to the parties involved at the time the ownership was transferred.
  6. Continuous use - The use before dividing the land must have been continuous rather than occasional or temporary.

Easement by estoppel - This is used when the seller of a property misrepresents the facts to the new buyer to make them believe they will hold an easement for a specific purpose in order to sell the house and after selling, the buyer is not granted an easement. In this case, the court may issue an easement by estoppel.

For example, imagine that you are contemplating buying a house that does not have access to the road, however, the seller promises you that you can use their driveway to get to the main road. Under this promise, you choose to buy a house. However, after the purchase, the seller no longer allows you to use their driveway. In this scenario, the court may issue an easement by estoppel.

Easement by the government - These are the types of public easements that were mentioned earlier. The government has the power to take private property for public use, as long as the owners of the property are compensated fairly. In the scenario that the government wants to use a portion of the private property to benefit the general public, then it might issue an easement.

Rights and responsibilities

In an easement, the dominant and servient estates hold certain rights and responsibilities. The dominant estate is not to use the easement in such a way that it places an undue burden on the servient estate and interferes with the enjoyment of the servient estate’s property. For example, when the dominant estate places an undue burden, the court can restrict the dominant’s use of the easement, order monetary damages to be paid to the servient estate or terminate the easement altogether.

Likewise, the servient estate is not to use or change the property in such a way that it interferes with the use of the easement held by the dominant estate. For example, in the case that the servient estate builds something in their property that would interfere with the dominant estate’s use of the easement, the court can order the servient estate to tear down what they built. If the change affects the value of the dominant estate, the court can order for the other party to compensate for the financial losses.

FAQ - Easements

How do I check if a property has an easement?

There are a couple of steps you can take to check if there are any easements on the property you are interested in. First, look at the disclosures. Sellers are legally obligated to disclose any easements or information that could affect the house’s value or your enjoyment of it. Next, you can visit the county land records office or the city hall, any easements on the house are typically included in its deed. Finally, you can do a property survey and a title search which will tell you when there are easements on the property. It is crucial to do proper research, as some easements may be undocumented or in the process of being created.

How does an easement impact the value of my property?

It depends on the type of easement and the purpose for which it was put in place. Most easements typically do not affect the value of a property, however, if the easements severely restrict the use and enjoyment of the property, then they may have a negative impact. Depending on how common easements are in the area, the impact the easement has on the use of the property and the specific terms of the easement, your property’s value might or might not be affected.

Why do I need to know about easements on my property?

Easements can interfere with the use and enjoyment of your property. While some easements may go unnoticed, such as if you have a drainage easement, others can restrict you from making certain changes to your property. For example, if you have a historic preservation easement, there will be restrictions on the way that you modify your property.

How do I remove an easement from my property?

Although most easements do not have an expiration date, there are some occasions when easements can be removed and steps you can take to remove them. For example, in easements by necessity, if the need for the easement does no longer exist, then the easement is invalid. On other occasions, when the easement holder does not use the easement for a long time, the easement can be considered to be abandoned.

If you want to remove an easement from your property, you can ask the easement holder to give up their rights to access your property through arelease of easement. You will also have to file a property survey and pay to have the easement removed. On the other hand, the holder of the easement would have to file a quitclaim deed to terminate the easement.

How can I prevent a prescriptive easement on my property?

To prevent a prescriptive easement, you will need to take action as soon as you suspect that someone is trespassing your property. Whether you choose to build a fence or put up a sign, it is important to show that you are not allowing this behavior and that you are taking action to prevent it. Another easier way in which you can prevent someone from acquiring a prescriptive easement is to simply give them permission to enter your property. This way, the requirement of hostile use won’t be fulfilled if the person later tries to get a prescriptive easement on your property.

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