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EASEMENT

INTRODUCTION
• An easement is a legal right to occupy or use another person’s land for specific
purposes. The use of the land is limited, and the original owner retains legal title of
the land. 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 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.
THIS AREA HAS ITS OWN SPECIAL TERMINOLOGY:

• The person who enjoys the easement over the other person's
property is called the "dominant owner", and that person's land is
called the "dominant tenement".


The land subject to the easement is called the "servient tenement",
and the owner of that land is referred to as the "servient owner".
TYPES OF EASEMENT

• Here are several types of easement, each of which grants the holder specific use of
the property. The type of easement depends on the type of property involved, the
relationship of the parties, and the specific use for which the easement is granted.
• 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, country, 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. In the
case of a utility easement, the property owner can use the property however they
choose, as long as they do not interfere with the utility company or municipality’s
use.
Private Easement
Private easements occur when a property owner sells an easement to an individual.
This may be for a number of reasons, including giving a neighbor driveway access, or
sharing a sewer line or well with a neighbor. Before granting a private easement, or
purchasing a property that has this type of easement, it is vital that the property
owner or potential buyer review the documents carefully, as a private easement often
limits what the property owner can do on or around the defined area. For example, a
property owner who has granted a solar access easement to his neighbor may not be
allowed to plant trees or construct buildings, either of which would block sunlight, next
to the easement
Easement by Necessity
Situations often arise when one property owner must cross another’s land for a
crucial purpose, such as accessing their land and home. A landowner cannot be
denied access to his home or property, and this is generally taken into account in the
deeds when the land is originally divided. Although necessity creates a right to an
easement, it is imperative to ensure the exact location of an easement by necessity
is recorded on the deed.
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 status 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.
Public Easement
A public easement grants a certain defined area of land for public use.
An example would be the granting of public access of a portion of the
landowner’s property for a park or touring.
Easement by Prior Use
An easement by prior use is based on a notion that, on occasion, landowners intend
to form an easement, but forget to include it within the deed. In this case, five
elements are needed to establish an easement by prior use:
Common ownership of both properties at any one time
A severance of the properties
Use of easement before and after the severance
Notice of the easement
The easement is for necessary and beneficial use
For example, Bob owns two separate lots, one of which provides access to a public
street, the other sits behind it. Bob’s driveway starts on the second lot and runs
through the first lot to the public street. He sells the street-adjacent lot and forgets to
specify the driveway area as an easement in the deed. Most likely, the court will
determine Bob is entitled to an easement by prior use, as it is necessary for him to
access his property from the street.
EASEMENT RIGHTS
• 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. The property owner may also use the land as long as such use
does not interfere with the purpose of the easement.
• Reasonable use of an easement may change over time as the property evolves and
technology improves. 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.
Conversely, if the court finds that the property owner is interfering with an easement,
it may order the property owner to stop the action or remove any obstruction.
The following rights are recognized as easements, even if there are no official
documents or agreements:
•Aviation Easement – the right to use the airspace over a property, flying above a
certain altitude, where needed for spraying of property or other agricultural purposes.
•Storm Drain Easement – the right to install a storm drain to carry rainwater to a
river, wetland, or other body of water.
•Sidewalk Easement – the right of the public to use sidewalks in front of a public
area.
•Beach Access Easement – the right for neighboring residents to access a public
beach, even if the access crosses private property.
•Dead End Easement – the requirement for a landowner to grant the public access to
the next public way, even if such access crosses on his property.
•Conservation Easement – the right of a land trust to limit development, usually
done for the purpose of protecting the environment.
Transferring an Easement
When considering a real estate transaction, easements must be taken
into consideration, including the feasibility of transferring an easement. Some types
of easements are transferred when a property changes hands, others are not. For
example, an “appurtenant easement” remains part of the property, while “easements
in gross” are considered rights of personal enjoyment granted by the original
property owner. These types of easements may include access for camping, hunting,
and fishing, among other activities. If the property in question changes hands, it is up
to the new owner whether to continue to grant the easement.
Putting it simply, the difference between an appurtenant easement and an easement
in gross is that the appurtenant easement is for the benefit of the land, while an
easement in gross only benefits the individual to whom it is granted.
Duration of an Easement
In general, if the legal easement does not specify the length of time the
easement will be in effect, the courts can assume it was created to last
indefinitely. However, if the easement holder intends to use the land
permanently, the duration of an easement should be specifically stated
in the recorded deed containing the easement. In the case of an
easement that specifies a termination date, the easement holder must
stop use of the land on or before that date, or seek permission to
extend the duration of the easement from the property owner.
Trespass Upon an Easement
Blocking a party who has an easement is considered “trespassing upon
an easement,” an action for which the easement owner has a right to
file a lawsuit. For example, placing a fence across a public path that sits
on an easement may be considered trespassing upon an easement,
even if the fence was placed by the property owner. In this case, the
easement holder can take the property owner to court, which may then
order the fence be removed.
Terminating an Easement
The act of terminating an easement requires the approval of the court. For a
property owner to terminate an easement, at least one of the following facts must be
proven in court:
•Both parties have agreed to the termination
•The easement has reached its expiration date
•The easement holder discontinued use the of property
•The need for the easement no longer exists
•The easement holder is creating a hostile use of the property
•The owner of an easement has died
If the property holder seeking to terminate an easement is unable to prove one or
more of the required facts, the court may order him to continue allowing the
easement holder to use the land in question until these facts can be proven.
PRECAUTIONS TO PROTECT EASEMENT RIGHTS.
• legal proceedings to enforce the easement
• A wrongful disturbance of an easement is regarded by the courts as a legal nuisance, and therefore
you will need to bring an action in private nuisance to enforce your rights. However, the disturbance
cannot be a merely trivial or nominal one: there must be some substantial interference with the
enjoyment of your rights.
• Remedies for wrongful interference of an easement include:
• an injunction (where the court makes an order prohibiting the servient owner from interfering with
your rights)
• a declaration (where the court makes a binding statement of the parties' rights and obligations), or
• damages
• The courts have a wide discretion in the choice and degree of remedy that may be granted.
Abatement

Abatement is regarded as a self-help remedy, which in certain


circumstances permits the dominant owner to go onto the land and
remove an obstruction if it is interfering with an easement. An example
would be unlocking a locked gate that was blocking a driveway through
which you have a right of way.
Related Legal Terms and Issues
•Deed – a legal document drawn up and signed in regards to the
ownership of real property.
•Obstruction – something or someone that prevents access or progress
in some manner.
•Reasonable Use – using land or water in a manner that is legal and
just.
•Severance – an action that ends a relationship or a connection.