An easement is a nonpossessory 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; in the United States, the Third Restatement of Property takes steps to merge these concepts as 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.
The most common kind of easement is one that has been given in writing to a utility company or a city. Utility easements are sometimes described in a property deed or certificate of title as “those certain utility easements as set out and shown on the map and plat of record in such-and-such a book on page something-or-other.” The existence of these easements doesn’t have much day-to-day effect. You can plant on the property, live on it, even build on it, as long as you don’t interfere with the utility’s use of the easement.
If you want to know where any utility easements are located on your property, call the utility company. Or you can go to the county land records office or city hall and ask a clerk to show you a map of the easement locations. A survey of the property will also show the location of utility easements.
In addition to utility easements, a property owner may sell an easement to someone else—for example, to use as a path or driveway or for sewer or solar access. Private sewer easements are often sold when an uphill house is being built, so the pipe from the house to the street can slant properly—sometimes right under your property.
If your title contains private easements, you should get copies of the actual easement documents. You need to know where the easements are and what uses they allow. If a solar access easement has been sold to a neighbor, for example, you may find that you are severely limited in what you can build or grow on your property, because you can’t block sunlight to the neighbor’s solar collectors. If you are unaware of the terms of a private easement, you could unknowingly interfere with the easement rights and be liable for damage.
Any private easement referred to in your property papers should have a reference number, such as a book and page number. Your county clerk can help you locate it in the public records and obtain a copy to keep with your deed.
Easements by Necessity
Even if it isn’t written down, a legal easement can exist if it’s absolutely necessary to cross someone’s land for a legitimate purpose. The law grants people a right of access to their homes, for example. So if the only access to a piece of land is by crossing through your property, the law recognizes an easement allowing access over your land. This is called an “easement by necessity.” When land is subject to such an easement, the landowner may not interfere with the neighbor’s legal right.
Someone can acquire an easement over another’s land for a particular purpose (such as accessing their own home) by using someone else’s property openly and continuously for a set period of time. This is called a prescriptive easement, and typically one is created when someone uses land for access, such as a driveway or beach path or shortcut. The length of use required for a prescriptive easement varies from state to state and is often the same (10 or 20 years) as for adverse possession (which is when someone acquires legal ownership of land by occupying it).
While prescriptive easements and adverse possession may be the same (in terms of length of use required), there are important differences. For example, payment of property taxes is not necessary for a successful prescriptive easement claim, while some states require a trespasser to pay property taxes to obtain legal ownership. Also, to acquire a prescriptive easement, a trespasser does not need to be the only one using the land. More than one person can acquire a prescriptive easement in the same portion of land—an example would be a driveway on another’s land or a path people use as a shortcut.
If you don’t mind someone using part of your property but don’t want him or her to gain the legal right to do so, the simplest way to prevent a prescriptive easement is to grant the person written permission to use the property. For example, if your neighbor is parking his car on a small strip of your property and you give him permission to do so, your neighbor is no longer a trespasser, and he can’t claim an easement by prescription. Giving permission to a current user also prevents people who move in later from claiming that they inherited a prescriptive easement.
To find your state’s law on prescriptive easements, look up “easements” in the index to your state statutes. To understand how the courts in your state have interpreted different requirements, you may also want to check your state’s court decisions on prescriptive easements.
A property owner may not interfere with the purpose of a legal easement. If, for example, the electric company has wires strung across its right of way, you cannot take them down or block their path. If you interfere with an easement, you may end up being liable to the easement owner for damage and be subject to a court action ordering you to stop.
If you find yourself in a dispute over an easement or you feel someone is illegally trespassing on your property—for example you are a new homeowner who just discovered that your neighbor is using what you believe is a private drive for access to her own property—see an experienced local real estate attorney. The laws on easements vary from state to state and you will probably need tailor-made advice for your situation. It’s especially important to consult with an experienced real estate attorney if there is nothing in writing (for example, in a deed or title papers) about the easement. The legal doctrines of unwritten easements that are created by people’s actions and certain circumstances can be very complicated, and you’ll want advice from someone experienced in your state’s real estate law and up to date on relevant court decisions.
Forster Realty Advisors is a Beverly Hills consulting practice, limiting itself to consulting plaintiffs and defendants in real estate litigation matters. In business since 1997, we have developed a national practice and have qualified as expert witnesses in state and federal courts in more than 20 states.
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