Easements

An easement is a non-possessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement. It may be more broadly described as a right for a property owner to use the land of another property. An easement which runs to benefit of the grantees and to their heirs will be construed as being perpetual in duration; however, an easement can be granted for a certain period of time, such as 10 years. There are two main categories of easements: appurtenant and in gross.

An easement appurtenant benefits a particular parcel of land, known as the dominant estate and burdens another parcel of land, known as the servient estate.  A conveyance of the dominant estate also passes the benefit of the easement, while a conveyance of the servient estate passes with it the burden thereof. Easements appurtenant are generally considered perpetual because they “run” with the land. 

The easement may be exclusive, benefiting only one party, or non-exclusive so it benefits several parties who have the right to use it in common. It is important to remember that the dominant estate owner may not use an appurtenant easement to benefit property other than the dominant estate. For example, if A, B, and C are owners of contiguous lots, and only A’s lot abuts a street, (and B’s and Cs’ lots are landlocked) an easement granted by A to B to pass over A’s lot for access to the street may not be extended to allow C to cross A’s lot without A’s consent. 

An easement in gross does not benefit any parcel in particular. This type of easement may indirectly benefit another parcel by enhancing its value and there is no dominant or servient estate. Easements in gross were originally held to be non-transferable but the modern view is that an easement in gross is transferable by the holder thereof. An example of an easement in gross is a right-of- way for high-tension power lines that cross over a property. The utility company would be the grantee of the easement and in most utility easement cases, the easement does not benefit a particular adjacent parcel owned by the utility company, therefore there is no benefitting party or dominant estate.

Creating an Easement

There are generally three ways to create an easement: grant or reservation, implication (including necessity), or prescription. The instrument creating the easement must be executed by the owner of the land which is to be burdened by the easement. If more than one person owns the land, all owners must sign, or the easement is invalid.

Easement by Grant or Reservation

An easement is created by grant or reservation through the use of a written instrument. The grantor may “grant” the easement to the grantee or the grantor may reserve an easement to the grantor in a deed of conveyance; however, a reservation may not be created in favor of a third party by attempting to “reserve” it in a deed of conveyance. Additionally, an easement may also be created by depiction on a filed map, notwithstanding the lack of a separate, written instrument establishing it.

Easement by Implication (Including Necessity)

An easement by implication arises by operation of law. It is created by judicial interpretation of the circumstances surrounding a conveyance of land. An easement by necessity is a form of easement by implication and is created when there has been unity of ownership and a subsequent separation of the parcel results in the grantor or grantee owning a landlocked parcel. The key to establishing an easement by necessity is the original common ownership. For an easement by necessity there is no requirement that one portion of the land has been used for the benefit of the other prior to severance. The four required elements to establish necessity are:

Easement by Prescription

 For example, if Owner A walks across Owner B’s land every day for a period of 20 years, despite Owner B’s demand that A stop, Owner A may have acquired a prescriptive easement over Owner B’s land. However, it is important to keep in mind that a license or permissive use cannot ripen into a prescriptive right. Therefore, if A had been granted permission by B to walk across B’s land, or if B tolerated A’s use of B’s land without protest, no easement is created. However, if the use continues for a sufficient period of time after permission is revoked, there could be a prescriptive easement.

Termination of Easements

An easement may be terminated or extinguished through written instrument, merger, terms of the instrument creating the easement, overburdening, abandonment, or estoppel. 

By Written Instrument/Merger:

A written instrument, such as a release or deed, given by the owner of the dominant estate to the owner of the servient estate will serve to extinguish an easement. In addition, an easement could terminate automatically by its own terms if it has a specific timeframe in it. A merger of the dominant and servient estates will also destroy an easement. Additionally, the holder of an interest senior to the easement may, under certain circumstances, be able to destroy it. 

By Abandonment:

An easement may also be terminated through abandonment; however, the mere non-use of the land is not unusually enough to establish an abandonment. The non-use must also be accompanied by other actions on the part of the holder of the easement, which the servient owner relied upon to his detriment. To verify the termination, one would obtain a Court Order or written agreement with the other party. 

By Overburdening:

Overburdening or misuse of an easement can also result in its destruction when a dominant estate subjects an easement to a use far beyond the original contemplation of the parties; however, it is only applicable in extreme cases. As a general rule, where the dominant estate is subdivided, an easement appurtenant insures to the benefit of each subdivided parcel. So, one should not generally assume that an easement has been destroyed by overburdening merely on account of the subdivision of the dominant estate.

By Estoppel:

If the owner of a dominant estate, by his or her words, action, or conduct, indicates that the easement is no longer needed or useful, and the owner of the servient estate relies thereon to his or her detriment, the dominant estate owner is prevented from later asserting the validity of the easement. For example, a dominant estate enjoys the benefit of a right-of-way easement over the servient estate. The owner of the dominant estate, John, is aware that the owner of the servient estate, Jan, intends to construct a building over the area affected by the easement; however, John does not object to Jan’s plans. After the construction of Jan’s building has been completed, John demands that Jan demolish the building because it obstructs the easement. Jan refuses on the grounds that John did not object before the building was constructed. Therefore, John could be estopped from enforcing the easement. A Court Order may be necessary to effectuate this formally. 

Unenforceable Easements

Certain easements are unenforceable because of the manner of their creation, or for other reasons. Some examples of easements that may be considered unenforceable are:

• easements not executed by all owners of the property at the time of creation
• easements not properly recorded or indexed in the chain of title; and
• unrecorded easements.