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An easement is a non-possessory right of 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".[1] It is similar to real covenants and equitable servitudes;[2] in the United States, the Restatement (Third) of Property takes steps to merge these concepts as servitudes.[3]

Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond. 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:

  1. Right-of-way (easements of way)
  2. Easements of support (pertaining to excavations)
  3. Easements of "light and air"
  4. Rights pertaining to artificial waterways

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

Kinds of easement

Affirmative and negative easements

An affirmative easement is the right to use another's property for a specific purpose, while a negative easement is the right to prevent another from performing an otherwise lawful activity on their 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 A from blocking B's mountain view by putting up a wall of trees. A has a negative easement from B.

Dominant and servient estate

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 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.

Appurtenant and in gross easements

In the U.S., an easement appurtenant is one that benefits the dominant estate and "runs with the land", i.e., an easement appurtenant generally transfers automatically when the dominant estate is transferred.

Conversely, an easement in gross benefits an individual or a legal entity, rather than a dominant estate. The easement can be for a personal use (for example, an easement to use a boat ramp) or a commercial use (for example, an easement to a railroad company to build and maintain a rail line across property). Historically, an easement in gross was neither assignable nor inheritable, but today commercial easements are freely transferable to a third party. They are divisible, but must be exclusive (original owner no longer uses it and exclusive to easement holder) and all holders of the easement must agree to divide. If subdivided, each subdivided parcel enjoys the easement.

Floating easement

A floating easement exists when there is no fixed location, route, method, or limit to the right of way.[4][5][6] 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.[7]

One case defined it as: "(an) easement defined in general terms, without a definite location or description, is called a floating or roving easement...."[8] Furthermore, "a floating easement becomes fixed after construction and cannot thereafter be changed."[9]

Structural encroachment

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

Wayleave

In British energy law and real property law, 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." Similar to a license or profit-à-prendre, "[a] Wayleave is normally a temporary arrangement and does not automatically transfer to a new owner or occupier."[10] More generally, a wayleave agreement can be used for any service provider.[11]

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

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 deed or 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 sewerage 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). Power and water lines may also have implied easements linked to them, but drainage and stormwater systems are commonly precisely defined in location and recorded in the title documents for private land.

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 and 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.

Because this method of creating an easement requires imposing a burden (the easement) upon another party for the benefit of the landlocked owner, the court looks to the original circumstances in weighing the relative apportionment of benefit and burden to both lots in making its equitable determination whether such easement shall be created by the court. This method of creating an easement, being an active creation by a court of an otherwise non-existent right, may be automatically extinguished upon termination of the necessity (for example, if a new public road is built adjacent to the landlocked tenement or another easement is acquired without regard to comparison of ease or practicality between the imposed easement and any valid substitute).

There is also an unwritten form of easement referred to as an implied easement or easement by implication, 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) such as the right of lot owners in a subdivision to use the roadway on the approved subdivision plan without requiring a specific grant of easement to each new lot when first conveyed. An easement by necessity is distinguished from an easement by implication in that the easement by necessity arises only when "strictly necessary", whereas the easement by implication can arise when "reasonably necessary". Easement by necessity is a higher standard by which to imply an easement.

In India, easement of necessity could be claimed only in such cases where transfer, bequeathment or partition necessitates such claim.

As an example, some U.S. state statutes grant a permanent easement of access to any descendant of a person buried in a cemetery on private property.

In some states, such as New York, this type of easement is called an easement of necessity.[12]

Easement by prior use

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

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
  5. 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)
  6. Necessary and beneficial
  7. Reasonably necessary
  8. Not the "strict necessity" required by an easement by necessity
  9. Example

    A owns two lots. One lot has access to a public street and the second is tucked behind it and fully landlocked. A's driveway leads from the public street, across the first lot and onto the second lot to A's house. A then sells off the first lot but forgets to reserve a driveway easement in the deed.

    A originally had common ownership of both properties. A also used the driveway during this period. A then severed the land. Although A did not reserve an easement, the driveway is obviously on the property and a reasonable buyer would know what it is for. Finally, the driveway is reasonably necessary for a residential plot; how else could A get to the street?

    Here, there is an implied easement.

    Easement by prescription

    A metal plaque on the sidewalk of New York City to declare that the crossing onto the private property is a revocable license to protect it from becoming an easement by prescription.[13]

    Easements by prescription, also called prescriptive easements, are implied easements granted after the dominant estate has used the property in a hostile, continuous and open manner for a statutorily prescribed number of years. Prescriptive easements differ from adverse possession by not requiring exclusivity.

    Once they become legally binding, easements by prescription hold the same legal weight as written or implied easements. But, before they become binding, they hold no legal weight and are broken if the true property owner takes appropriate acts to defend their ownership rights. Easement by prescription is typically found in legal systems based on common law, although other legal systems may also allow easement by prescription.

    Laws and regulations vary among local and national governments, but some traits are common to most prescription laws.

    • open and notorious (i.e. obvious to anyone),
    • actual, continuous (i.e., uninterrupted for the entire required time period); this does not necessarily require use daily, weekly, etc.,
    • adverse to the rights of the true property owner
    • hostile (i.e. in opposition to the claim of another. This can be accidental, not "hostile" in the common sense)
    • continuous for a period of time defined by statute or appellate case law

    Unlike fee simple adverse possession, prescriptive easements typically do not require exclusivity. In states that do, such as Virginia, the exclusivity requirement has been interpreted to mean that the prescriptive user must use the easement in a way that is different than the general public, i.e. a use that is "exclusive" to that user, Callahan v. White, 238 Va. 10, 381 S.E.2d 1 (1989).

    The period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws (sometimes based on the statute of limitations on trespass). Generally, if the true property owner acts appropriately to defend their property rights at any time during the required time period the hostile use will end, claims on adverse possession rights are voided, and the continuous use time period will be reset to zero.

    In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal property owner, the prescriptive easement may become a regular or implied easement rather than a prescriptive easement and immediately becomes binding. An example of this is the lengthy Irish Lissadell House rights of way case heard since 2010, that extended long-standing consents given to individuals into a public right of way.[14][15]

    In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement.

    Government or railroad owned property is generally immune from prescriptive easement in most cases, but some other types of government owned property may be subject to prescription in certain instances. In New York, such government property is subject to a longer statute of limitations of action, 20 years instead of 10 years for private property.

    In most U.S. jurisdictions, a prescriptive easement can only be determined for an affirmative easement not a negative easement. In all U.S. jurisdictions, an easement for view (which is a negative easement) cannot be created by prescription.

    Prescription may also be used to end an existing legal easement. For example, if a servient tenement (estate) holder were to erect a fence blocking a legally deeded right-of-way easement, the dominant tenement holder would have to act to defend their easement rights during the statutory period or the easement might cease to have legal force, even though it would remain a deeded document. Failure to use an easement leading to loss of the easement is sometimes referred to as "non-user."

    Easement by estoppel

    When a property owner misrepresents the existence of an easement while selling a property and does not include in the deed to the buyer an express easement over an adjoining property that the seller owns, a court may step in and create an easement. Easements by estoppel generally look to any promises not made in writing, any money spent by the benefiting party in reliance on the representations of the burdened party, and other factors. If the court finds that the buyer acted reasonably and in good faith and relied on the seller's promises, the court may create an easement by estoppel.

    For example: Ray sells land to Joe on the promise that Joe can use Ray's driveway and bridge to the main road at anytime, but Ray does not include the easement in the deed to the land. Joe, deciding that the land is now worth the price, builds a house and connects a garage to Ray's driveway. If Ray (or his successor) later decides to gate off the driveway and prevent Joe (or Joe's successor) from accessing the driveway, a court would likely find an easement by estoppel.

    Because Joe purchased the land believing that there would be access to the bridge and the driveway and Joe then paid for a house and a connection, Joe can be said to rely on Ray's promise of an easement. Ray materially misrepresented the facts to Joe. In order to preserve equity, the court will likely find an easement by estoppel.

    On the other hand, if Ray had offered access to the bridge and driveway after selling Joe the land, there may not be an easement by estoppel. In this instance, it is merely inconvenient if Ray revokes access to the driveway. Joe did not purchase the land and build the house in reliance on access to the driveway and bridge. Joe will need to find a separate theory to justify an easement.

    Easement by the government

    In the United States, easements may be acquired (bought) by the government using its power of "eminent domain" in a "condemnation" proceeding in the courts. Note that in the United States, 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. For example, utility providers are typically granted jurisdiction-wide easement to access and maintain their existing infrastructure.

    In the law of England and Wales following the incorporation of the European Convention on Human Rights into English law, 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".

    Easements distinguished from licenses

    Licenses to use property in a non-possessory manner are similar to but more limited than easements and are, under certain circumstances, transformed into easements by the courts. Some general differences do exist:

    • A license is often revocable and is typically limited in duration
    • A license is often uninsurable
    • A license is often not recorded
    • A license is often vested in one person

    Easements are regarded as a broader and more powerful than licenses, and licenses that have any of the properties of an easement may be bound by the higher standards for termination granted by an easement.

    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[16]
    • Merger: When one owner gains title to both dominant and servient tenement
      • Mortgaged 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
    • Death: The owner of an easement in gross

    Rights

    The following rights are recognized of an easement:

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