Easements

An easement is a right-of-way over real estate. For example, public utility companies that have pipes and power lines running through a piece of land have easement rights to physically run those utilities through private and public property.

The parties to an easement are the dominant estate, who gains the right of way, and the servient estate, who is providing permission for access.

An affirmative easement allows the easement holder to use someone else’s property. A negative easement restricts a property owner from taking certain actions on their property.

This article contains information about different easements and the disputes that can result. If you have an easement dispute involving property rights, consider getting legal advice from a real estate attorney who understands easements.

Categories and Subcategories of Easements

To avoid confusion, we’ll try to be as inclusive as possible while keeping our list simple. Common easements include:

• Express easements, including public and private easements
• Implied easements
• Prescriptive easements, including easements by prescription
• Easements by necessity

• Conservation easements promoting environmental sustainability
• Easements by condemnation happening as a result of the government’s eminent domain power

The above-listed easements fall into two subcategories:

• Easements in gross, which do not transfer with a piece of land, and disappear after the land is sold
• Easements appurtenant, which remain with the land, even when it is sold

Because easements affect land rights, they can affect property values for the better or worse. When buying a home, you should study easements with as much focus as other legal documents, such as homeowner’s association rules and mortgage liens.

Express vs. Implied Easements

Express easements are the most common type of easement. For example, a written easement agreement will expressly say: “New Owner gives Old Homeowner a legal right of passage through the backyard for a specified period of time.” An express easement may or may not expire.

A utility easement is an example of an express easement while also categorized in some places as a “public easement.”

Sometimes parties “intend” to create an easement, even if they failed to write out an agreement or enter into an oral agreement. the parties may have manifested their intentions through their conduct. An owner might create an implied easement if they intend to provide a right of way for the use and benefit of another party.

For example, if a neighbor gives their blessing to their next-door friends for continued use of their private roads, that use may continue as an implied easement even after the generous neighbor sells the property.

Prescriptive Easements vs. Easements by Necessity

Prescriptive easements happen over a decade or a few decades depending on state law. To understand how they work, you should understand the concept of adverse possession: A person using the land without the owner’s permission can claim a prescriptive easement.

For example, if a homeowner crosses their neighbor’s property to get to a public road, the homeowner may get a prescriptive easement if the “habitual crossing” continues for a few decades. This can happen even if the neighbor doesn’t give permission.

Prescriptive easements can also benefit the public. For example, a private pathway the public uses to access a public beach may eventually create a prescriptive easement unless the land owner takes legal action to protect their private rights to that land.

When it comes to easements by necessity, sometimes owners are unwilling to grant a right of passage. But if a property is landlocked by other private properties, how can the owner access their own land without trespassing on someone else’s property? A court is likely to grant an easement by necessity in a situation like this.

Conflicts Involving Easements

Naturally, people are bound to get into disputes over easements. These battles will involve:

• Arguments over who has ownership rights in an easement
• Allegations of trespassing over a neighbor’s property
• Disputes over a specific use of the property or the validity of a property easement
• Violation of local laws

Because of the different types of easements, sometimes there is no clear answer on who has the “right of way” in these disputes. It might take a jury trial to uncover how the private property was used and what the parties’ intentions were.

In other situations, it can be clear by reading a clear, written legal document that an easement exists. Whether these disputes can be easily resolved, the best course of action is to document everything and consult with a legal expert.

An Easement Lawyer Can Help

If you are involved in an easement dispute involving property rights, consider getting legal advice from a real estate attorney. A real estate lawyer is well-versed in many things that involve real estate and easements.

Consulting with an attorney can help you protect your rights to your own private land, especially against trespassers and squatters. If you’re in need of access to a private road, you might also need a real estate lawyer’s help to create an easement or to conduct legal analysis and decide whether an easement exists.