An easement is an interest in another individual's land or property. Easements are typically created by express grant, by implication, by prescription or by necessity. Additionally, easements are classified as negative or affirmative. A negative easement gives the holder the right to prevent another individual from doing some act. Possessors of affirmative easements are entitled to go onto someone else's property for specific purposes.
Easement by Express Grant
An easement by express grant must be created in writing. Because easements are interests in land, express interests must be in writing to satisfy the statute of frauds. Easements by express grant are usually created by deed. A grantor typically sells just part of his property, but grants a purchaser an easement over the land he has retained. In such a case, the grantee owns what is called the "dominant" estate and the grantor retains the "servient" estate.
Easement by Implication
Sometimes, a court will imply an easement. Implied easements can be created even though they are not in writing. With implied easements, the servient estate owner has not granted permission to the dominant estate owner to use his property. Typically, the owners of the servient and dominant estates have never discussed one party's use of the other's property. Courts often imply easements when the use was in place at the time a single parcel of property was divided into two parcels.
Easement by Prescription
An individual can gain an easement by prescription by continuous, adverse use of another's land. The elements for an easement by prescription are parallel to those of adverse possession. These elements include actual physical presence on the servient estate, use that is open to the extent the landowner should notice and use that is "adverse" or hostile to the genuine landowner's rights. The use must be continuous, meaning it must run continuously for the statutory prescriptive period.
Easement by Necessity
Technically, an easement will be implied by necessity for any purpose, if the easement is strictly necessary for the enjoyment of a certain parcel of land. However, in most cases, easements by necessity involve access to and from landlocked property. The elements for an easement by necessity include a common owner, meaning a common owner severed the property at one time, the necessity existed at the time the property was severed and the easement is strictly necessary for use of the landlocked parcel.
- FindLaw: Easement Basics
- FindLaw: Affirmative and Negative Easements
- FindLaw: Express and Implied Easements
- FindLaw: Prescriptive Easements
- U.S. Legal: Easement by Necessity Law and Legal Definition
- City of Colonial Heights Department of Public Works. "Easements - What Is an Easement?," Page 2. Accessed March 11, 2020.
- Henderson County North Carolina. "Subdivision: Right-of-Way Frequently Asked Questions." Accessed March 11, 2020.
- Majr Resources. "What Is the Difference Between Easement & Right of Way?" Accessed March 11, 2020.
- Utah Department of Commerce. "Easements." Select "Is an Easement a Property Right?" Accessed March 11, 2020.
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- Trulia. "Easements: Know Your Property Rights." Accessed March 11, 2020.
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- Brewer Offord & Pedersen LLP. "What Is This “Easement” Thing In My Preliminary Report?" Accessed March 11, 2020.
- California Department of Insurance. "Title Insurance - Introduction." Accessed March 11, 2020.
Andrine Redsteer's writing on tribal gaming has been published in "The Guardian" and she continues to write about reservation economic development. Redsteer holds a Bachelor of Arts in history from the University of Washington, a Master of Arts in Native American studies from Montana State University and a Juris Doctor from Seattle University School of Law.