Many property owners own a home or a commercial building without ever hearing the term "easement." That's because most people don't worry about the underground sewage pipe that serves their property or notice how their wall gives the neighbor's townhouse support. Yet, believe it or not, most properties have easements in some form or another. There are many different types of easements, and they come in many different forms.
What Is an Easement?
An easement is the right to use land that belongs to someone else for a special purpose, such as:
- The right to walk or drive over someone's land to gain access to your property (right of way easement)
- The right to run overhead or underground power cables, telephone lines, water and sewage pipes across someone's land in order to reach another property (utility easement)
- The right to support from a common wall that separates a townhouse from its neighbor, where each house is built side by side (party wall easement)
- A right to use and access the common sidewalks, stairs, gardens and so on of a communal living space where the condo association owns most of the building (condo easement)
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The main point about easements is that the owner of the land retains full legal title to the property. The easement holder has the right to use part of the property for the special purpose, but he cannot do anything else with the land or interfere with the owner's right to use it. For example, a neighbor who has a right of way over a shared access lane may not veer from the designated path or try to prevent the legal owner from using the access himself by installing a locked gate. An easement holder who attempts to use the land for more than the specified purpose could well find himself in violation of local trespassing laws.
Five Common Types of Easements
The laws on easements vary from state to state and can be very complicated. So, if you're thinking of creating an easement or buying a property that is subject to easements, then you definitely will need some legal advice. Beyond that, there are various classifications of easements that apply in just about every state. The five most common types of easements are:
- Express easements
- Implied easements and easement of necessity
- Prescriptive easements
- Appurtenant easements
- Easements in gross
These categories are not mutually exclusive, and you can get an express easement that is also an appurtenant easement, for example. The first three categories describe how an easement comes into being – whether it is formally granted in a property deed or whether it comes into being organically because someone has used the land in a certain way for a very long period of time. The other two categories describe how long the easement lasts and who can use it.
Express Easements Created by Deed
An express easement is intentionally created in a property deed or a deed of grant of easement. For instance, someone might sell off the rear part of their garden as a building plot and give the new owner a right of way over the original owner's retained land in order to access the building plot. Conversely, the original owner might give himself the right to connect into the new sewer that's going to be laid under the building plot. This is known as an easement by reservation.
Either way, an express easement will always be in writing as it is deliberately created between a dominant party (the person who benefits from the easement) and a servient party (the owner of the land). Express easements get recorded at the county recorder's office so you should be able to see whether an express easement affects your land.
Express easements can be affirmative or negative, depending on the language of the document. An affirmative easement gives the grantee the positive right to do something, such as a right of way. A negative easement is a promise not to do something. In our building plot example, the dominant party might agree to not build a structure over two stories in height that could block the original owner's view.
Implied Easements Not Written Down
As the name suggests, implied easements are implied by the courts instead of being written down. Since there's no legal deed, these types of easements often do not come to light until many months or years after a property purchase.
Implied easements arise when the original owner subdivides his land and sells it off in portions, but forgets to pass along the easements that the original land enjoyed. For example, an owner might divide a large field into three lots to sell off individually, but forget to give the new lot owners the right to use an underground sewer that the original field enjoyed. As long as the easement is reasonably necessary to enjoy the subdivided lots, and it existed before the land was subdivided, then the court almost certainly will create an easement by implication.
Easement of Necessity
An easement by necessity is similar to an implied easement and arises when an easement must be implied otherwise the land becomes completely useless. The classic example is a landlock situation.
Suppose, for instance, that Mr. Owner owns property next to a road which he divides into two lots. Mr. A buys the eastern half of the property next to the road and Mr. B buys the western half. The problem is, B cannot reach his property from the road without crossing through A's property. Since B's land is essentially useless without a right of way, then an easement by necessity will be implied.
Prescriptive Easements Acquired by Long User
Like implied easements, prescriptive easements are not written down. Rather, they are acquired by long user. So, if someone drives the exact same route over someone else's land for a very long period of time (15 years in Minnesota, 20 years in Wisconsin), then they could create a legal easement.
Prescriptive easements are unusual as they can be hostile in nature. Essentially, it's a type of trespassing that goes on blatantly, continuously and for so long that the trespasser ends up getting a legal easement over the property. The use must be continuous throughout the state's limitation period to qualify for a prescriptive easement. If the trespass is so infrequent that the owner does not bother complaining about it, then an easement will not be created.
Appurtenant Easements Run with Land
An appurtenant easement is an easement that runs with the land. When the servient owner sells his property, the new owner will be subject to the easement (and the owner after him and the one after him and so on). If the dominant owner sells his property, then the benefit of the easement will transfer right along with it.
In other words, an appurtenant easement does not exist between two people, but between two parcels of land in perpetuity. The easement automatically transfers to the new owner as soon as the land is sold.
Easements in Gross Benefit a Person
The opposite of an appurtenant easement is an easement in gross. Here, the easement attaches to a specific person instead of to the property itself. The easement falls away as soon as the easement owner dies or stops using the easement. He cannot pass it to buyers, tenants or beneficiaries under his will.
Easements for power lines, gas lines and telephone lines tend to be easements in gross. They belong to the utility company instead of a dominant parcel of land, and they cease to exist if the utility company ceases to exist. Since utilities are important pieces of infrastructure, however, they tend to contain a clause that allows the utility company to assign the easement to another commercial operation.
