Easement

  

 

An easement is a nonpossesory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B".It is similar to real covenants and equitable servitudes

 

Easements are helpful for providing pathways across two or more pieces of property, allowing individuals to access other properties or a resource, for example to fish in a privately owned pond or to have access to a public beach. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions.

The rights of an easement holder vary substantially among jurisdictions. Historically, the common law courts would enforce only four types of easement:

• Right-of-way(easements of way)
• Easements of support (pertaining to excavations)
• Easements of "light and air"
• Rights pertaining to artificial waterways

Modern courts recognize more varieties of easements, but these original categories still form the foundation of easement law.

Types

 

Affirmative and negative easements

An affirmative easement is the right to use another property for a specific purpose, and a negative easement is the right to prevent another from performing an otherwise lawful activity on their own property.

For example, an affirmative easement might allow land owner A to drive their cattle over the land of B. A has an affirmative easement from B.

Conversely, a negative easement might restrict land owner A from putting up a wall of trees that would block the adjacent land owner B's mountain view. A is subject to a negative easement from B.

Dominant and servient easements

As defined by Evershed MR in Re Ellenborough Park[1956] Ch 131, an easement requires the existence of at least two parties. The party gaining the benefit of the easement is the dominant estate (or dominant tenement), while the party granting the benefit or suffering the burden is the servient estate (or servient tenement).

For example, the owner of parcel A holds an easement to use a driveway on parcel B to gain access to A's house. Here, parcel A is the dominant estate, receiving the benefit, and parcel B is the servient estate, granting the benefit or suffering the burden.

 

Public and private easements

A private easement is held by private individuals or entities. A public easement grants an easement for a public use, for example, to allow the public an access over a parcel owned by an individual.

 

Floating easements

A floating easement exists when there is no fixed location, route, method, or limit to the right-of-way. For example, a right of way may cross a field, without any visible path, or allow egress through another building for fire safety purposes. A floating easement may be public or private, appurtenant or in gross. 

One case defined it as "(an) easement defined in general terms, without a definite location or description, is called a floating or roving easement”. Furthermore, "a floating easement becomes fixed after construction and cannot thereafter be changed".

 

Structural encroachment

Some legal scholars classify structural encroachments as a type of easement. 

Wayleave

In British energy law and real property laws, a wayleave is a type of easement used by a utility that allows a linesman to enter the premises, "to install and retain their cabling or piping across private land in return for annual payments to the landowner". Like a license or profit-à-prendre. “ Wayleave is normally a temporary arrangement and does not automatically transfer to a new owner or occupier." More generally, a wayleave agreement can be used for any service provider. 

In the United States, an easement in gross is used for such needs, especially for permanent rights.

 

Access easementS

An access easement provides access from a public right of way to a parcel of land. For example, if Zach and James own neighboring parcels of land, Zach's parcel may have easement rights to cross James's parcel from a public right of way. In such a case, Zach's "dominant" parcel would contain an access easement to cross James's "servient" parcel.

 

Creation

Easements are most often created by express language in binding documents. Parties generally grant an easement to another, or reserve an easement for themselves. Under most circumstances having a conversation with another party is not sufficient. Courts have also recognized creation of easements in other ways.

Express easement

An easement may be implied or express. An express easement may be "granted" or "reserved" in a deedor other legal instrument. Alternatively, it may be incorporated by reference to a subdivision plan by "dedication", or in a restrictive covenant in the agreement of an owners association. Generally, the doctrines of contract law are central to disputes regarding express easements while disputes regarding implied easements usually apply the principles of property law.

 

Implied easement

Implied easements are more complex and are determined by the courts based on the use of a property and the intention of the original parties, who can be private or public/government entities. Implied easements are not recorded or explicitly stated until a court decides a dispute, but reflect the practices and customs of use for a property. Courts typically refer to the intent of the parties, as well as prior use, to determine the existence of an implied easement.

A government authority or private service provider may acquire an implied easement over private land by virtue of the public service it performs. For example, a local authority may have the responsibility of installing and maintaining the sewage system in an urban area. Merely by the fact that it has that responsibility, usually enshrined in some statute or local laws, may give the authority the right, by virtue of an implied easement, to enter private property to carry out installation and maintenance. The location of the easement will not usually be described precisely, but its general position will be defined by the service route (i.e., the sewer pipes in this example). 

Easement by necessity

Despite the name, necessity alone is an insufficient claim to create any easement. 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 lands there has been some original intent to provide the lot with access, and the grant was never completed or recorded but is thought to exist. A court order is necessary to determine the existence of an easement by necessity. To obtain this generally the party who claims the easement files a lawsuit, and the judge weighs the relative damage caused by enforcing an easement against the servient estate against the damage to the dominant estate if the easement is found not to exist and is thus landlocked.

 

Easement by prior use

An easement may also be created by prior use. Easements by prior use are based on the idea that land owners can intend to create an easement, but forget to include it in the deed.

There are five elements to establish an easement by prior use:

1. Common ownership of both properties at one time
2. Followed by a severance
3. Use occurs before the severance and afterward
4. Notice

1.     Not simply visibility, but apparent or discoverable by reasonable inspection (e.g. the hidden existence of a sewer line that a plumber could identify may be notice enough)

5. Necessary and beneficial

1.     Reasonably necessary

2.     Not the "strict necessity" required by an easement by necessity

Example

A sells the front lot, but forgets to get an easement for driveway access.

 

Termination

A party claiming termination should show one or more of the following factors:

• Release: agreement to terminate by the grantor and the grantee of the easement
• Expiration: the easement reaches a formal expiration date
• Abandonment: the holder demonstrates intent to discontinue the easement
• Merger: When one owner gains title to both dominant and servient tenement

oMortgaged properties with merged easements that then go into foreclosure can cause the easement to revive when the bank takes possession of part of the dominant estate

• Necessity: If the easement was created by necessity and the necessity no longer exists
• Estoppel: The easement is unused and the servient estate takes some action in reliance on the easement's termination
• Prescription: The servient estate reclaims the easement with actual, open, hostile and continuous use of the easement
• Condemnation: The government exercises eminent domain or the land is officially condemned. Depending on the situation this could take a number of forms. A government can condemn a plot of land and remove an easement even if the easement is in favor of the adjoining property owner.

 

Rights

The following rights are recognized of an easement:

• Right to light
• Aviation easement 
• Railroad easement 
• Utility easement 
• Sidewalk easement 
• View easement 
• Driveway easement 
• Dead end easement 
• Recreational easement 
• Conservation easement 
• Communications easement 
• Ingress/egress easement 

 

Trespass upon easement

Blocking access to someone who has an easement is a trespass upon the easement and creates a cause of action for civil suit. For example, putting up a fence across a long-used public path through private property may be a trespass and a court may order the obstacle removed. Turning off the water supply to a downstream neighbor may similarly trespass on the neighbor's water easement.

Open and continuous trespassing upon an easement can lead to the extinguishment of an easement by prescription if  no action is taken to cure the limitation over an extended period.