Easement or Right of Way in Real Property
What are the Types and Characteristics of Easements?
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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 elses land for ingress and egress. This is known as a right of way.
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How are Easements Created?
An easement may arise by a number of methods, as follows:
What is an 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 Diannes property. As part of the transaction, Dianne signs a deed granting an easement to Emma.
What is an Affirmative Easement?
An affirmative easement grants an individual the right to do something on the subject property.
What is a Negative Easement?
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.
What is an 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.
What is an Appurtenant Easement?
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.
What is a 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 Glorias land. The only way that Will can access his land from the public highway is to cross Glorias land. Will may be able to bring a court action establishing a natural easement allowing him to cross Glorias land at a specific point. The justification for the grant of easement is that without it, Will cannot use or enjoy his property.
What is an 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 elses 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 Marys property every year for 20 years (the applicable states 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 Marys 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 elses 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?
- An easement is an ownership interest in land that allows the holder the right to use another persons land (the fee simple owner) for a specific purpose. An easement may be created expressly by a written deed of grant conveying to another the right to use for a specific purpose a certain parcel of land. An easement may also be created when one sells his land to another but reserves for himself the right to future use of a portion of that land. An easement may also be created by implication when for example, a term descriptive of an easement is incidentally included in a deed. An easement by implication also arises when the owner of two or more adjacent parcels of land sells one lot, the buyer acquires an easement to that visible property of the seller necessary to the buyers use and enjoyment of his lot, such as a roadway or drainage duct. When created in this manner the easement also arises as an easement of necessity. In the practice question, Steven holds an easement interest in Amys land. The easement is either an affirmative easement allowing Steven to cross the land at a specific place. It may also be construed as a negative easement limiting Amy from doing certain things on a portion of her land.
Academic Research on Easements
- Bernhardt, Roger, Obsolete Easement: You Can Do it But Can You Legalize it? (February 27, 2013). Available at SSRN: https://ssrn.com/abstract=2227165 or http://dx.doi.org/10.2139/ssrn.2227165
- Owley, Jessica, Cultural Heritage Conservation Easements: The Problem of Using Property Law Tools for Heritage Protection (July 6, 2015). Land Use Policy 2015, Forthcoming; SUNY Buffalo Legal Studies Research Paper No. 2015-032. Available at SSRN: https://ssrn.com/abstract=2243129