Easement law

Easements give an easement holder the right to use or to prevent the use of property he or she does not own or possess. This places the easement holder and possessor of the servient estate in the unique position of simultaneously utilizing the same piece of land. The prevalence of easements and their nonpossessory nature creates a unique set of issues in drafting, interpretation and implementation. It is therefore, important to have a basic understanding of the manner in which they are created, their scope, transferability, and methods of termination. Whether an individual, business, or government entity wishes to create an easement, purchase property burdened by an easement or determine the nature of a property interest, experienced legal counsel should be consulted.

Unlike a lease, an easement does not give the holder a right of "possession" of the property. A license, which is a lesser interest than an easement, only gives a holder a personal privilege to use land of another for a limited purpose. For example, a license is given when a landowner gives his neighbor a verbal permission to park a car on his driveway, or to park an automobile for a limited period. A license can be terminated much more easily than easements. A license is similar to but different from a wayleave.

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 legal or interpretive problem by expressly providing that the easement is permanent and utilizing appropriate words of inheritance. Although permanent easements are the norm, they can be can be terminated in numerous ways. For instance, an easement may be created for a limited or conditional duration. When the time passes or the condition occurs, the easement ends.

Types of Easement & Termination

Types:

• Public and private easement
• Appurtenant easement
• Easement in gross
• Floating easement
• Structural encroachment

Termination

Mere non-use does not generally end an easement. A party claiming termination should show one or more of the following factors:

• Agreement to terminate by the grantor and the grantee of the easement
• Expiration of the time allowed for the easement
• Abandonment or express intent to discontinue the easement
• Merger where one owner possesses both dominant and servient tenement
• End of necessity which created easement by necessity
• Estoppel, where a holder of the easement stopped using it and a third party detrimentally relied thereon
• Prescription where a holder of the easement uses someone else to use the easement for a period of statute of limitations
• Condemnation by the government through eminent domain
• Death of the owner of an easement in gross

Easement by Necessity

Parcels without access to a public way may have an easement of access over adjacent land, if crossing that land is absolutely necessary to reach the landlocked parcel. There is an implied easement arising from the original subdivision of the land for continuous and obvious use of the adjacent parcel (e.g., for access to a road, or to a source of water). This easement is extinguished upon termination of the necessity (for example, if a new public road is built adjacent to the landlocked tenement). An easement by necessity is distinguished from an easement by implication in that the former easement arises only when "strictly necessary," whereas the latter can arise when "reasonably necessary."

Easement by Prescription

Easements by prescription, also called prescriptive easements, are implied easements that give the easement holder a right to use another person's property for the purpose the easement holder has used the property for a certain number of years, which varies from state to state. Prescriptive easement is not the same as adverse possession, which allows a party to acquire title to real property by asserting possession over it for the statutory period. Requirements vary among states to successfully claim adverse possession, but in most the elements of a prescriptive easement are exactly the same as for adverse possession with the exception of exclusivity.

Easement by the Government

In the United States, easements may be acquired by the government using its power of "eminent domain" in a "condemnation" proceeding in the courts. Note that in the U.S., in accordance with the Fifth Amendment to the U.S. Constitution, property cannot simply be taken by the government unless the property owner is compensated for the fair market value of what is taken. This is true whether the government acquires full ownership of the property ("fee title") or a lesser property interest, such as an easement.

A similar right to property would appear to exist in the law of England and Wales following the incorporation of the European Convention on Human Rights into English law, in that any deprivation of the rights of the owner of property must be "in accordance with law" as well as "necessary in a democratic society" and "proportionate".

Easement by Prior Use

An easement may also be created by prior use. In this type of implied easement, an assumption is made that the parties intended to create an easement, but simply forgot to include it in the deed. In order to justify this assumption, the use must be visible, permanent, and reasonably necessary. These easements are often inferred in the case of telephone or cable wiring.