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Easement or Right of Way in Real Property

11. What is an “easement interest” in real property?

An easement is a limited interest in real property. It involves a particular right to use the subject property in a particular manner, but does not necessarily create a right to possess the property. Generally, the easement rights exist at the same time as the rights of other property interest holders.

•    Example: An easement commonly grants the right to cross or use someone else’s land for ingress and egress. This is known as a “right of way”.

An easement may arise by a number of methods, as follows:

•    Express Easement – An express easement is an easement intentionally granted to another person in writing. It generally arises pursuant to a deed, contract, or testamentary document.

⁃    Example: Emma sells property to Dianne. Emma reserves an easement across Dianne’s property. As part of the transaction, Dianne signs a deed granting an easement to Emma.

•    Affirmative & Negative Easements – An affirmative easement grants an individual the right to do something on the subject property. A negative easement, on the other hand, restricts an individual from using her land in a certain way. Generally, it arises pursuant to a transfer of land whereby the original owner does not want the land used in a specific manner.

⁃    Example: Brad owns two pieces of land that are side by side. He sells one of the pieces of land to Teri. He establishes a negative easement in the land at the time of transfer that states that the land cannot be used in a certain manner.

•    Appurtenant & In-Gross Easement – The easement may attach to the land or it may belong specifically to the person. An “easement in gross” is an easement that allows an individual to use the subject land. The easement does not attach to the land, rather it is a right held by the individual. In this way the easement in gross is similar to a license. An “easement appurtenant” is an easement that attaches to or is a part of the land, rather than owned by an individual. The easement will remain with the property, no matter who owns the property.

⁃    Example: Sally may grant an easement to Victor that allows him to cross her land at a specific location. The easement states the right belongs to Victor and does not attach to the property. Sally can determine whether Victor can transfer the easement to another person, but it is personally owned. This is an easement in gross.

•    Natural Easement  (Easement by Necessity) – A natural easement arises when it is necessary for an individual or the public to make use of land located near the property subject to the easement.

⁃    Example: Will owns land located behind Gloria’s land. The only way that Will can access his land from the public highway is to cross Gloria’s land. Will may be able to bring a court action establishing a natural easement allowing him to cross Gloria’s land at a specific point. The justification for the grant of easement is that without it, Will cannot use or enjoy his property.

•    Easement by Prescription (Adverse Possession) – An easement by prescription is obtained by adverse possession (see the discussion of adverse possession). An individual who wrongfully uses someone else’s land under the conditions required for adverse possession may pursue a court action to establish ownership rights in the property.

⁃    Example: Winston drives cattle across Mary’s property every year for 20 years (the applicable state’s statutory period). He did so openly; claiming the right to do so; it was known to others; it was done every year; and it was done without the permission and against the Mary’s wishes. When Mary finally tries to put up a fence to stop Winston from driving cattle, he brings a court action to establish an easement by prescription.

•    Discussion: How do you feel about an individual acquiring easement rights that are not express? Why should an easement ever belong to an individual rather than attaching to the land or burdened property? How strong should the need be for an individual to acquire an easement by necessity? How frequent must the use of someone else’s property be to give rise to an easement by prescription?

•    Practice Question: Steven owns a tract of land that adjoins the river. He decides to divide his land into two parcels. He maintains ownership of the parcel that adjoins the river. The other piece of property sits directly in front of his property and borders the road. Steven agrees to sell the property adjoining the road to Amy, but he puts in the deed a specific limitation stating that Amy cannot build a building on the far right side of the property. Steven and Amy later get into an argument and Amy seeks to stop Steven from crossing her land to access his property. What legal issues are at play in this situation?

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