The most frequent type of encumbrance is referred to as an easement. It refers to a scenario in which a company or an individual is granted permission to utilize a portion of the property owned by another party.
When a person or company intends to purchase a piece of property, it is essential to get easements first. A property easement is considered a property right and an incorporeal property in its own right in the majority of states. It is comparable to legally binding covenants as well as equitable servitudes.
It is customary to provide a financial contribution to the property’s owner in exchange for permission to use their land. Sometimes, it can be as simple as receiving permission to walk through a neighbor’s compound, fish in a privately owned pond, or access a public beach.
What is an Easement? Definition & Meaning
Definition: An easement is a right to use a piece of land or property granted to a person or company who is not the landowner. It is indicated in the Certificate of Title. It includes the right to use or improve portions of another party’s property or to prevent the owner from using or improving the property in certain ways.
It is a non-ownership right to use or enter the property of another without possessing it.
Types and Creations of Easements
There are four basic types of easements:
- Rights-of-way (easements of way)
- Easements of support (about excavations)
- Easements of “light and air”
- Rights of artificial waterways
Easements can also be classified as
- Affirmative and negative easements
- Dominant and servient estates
- Private and public easements
Some other types of easements are
- Floating easements
- Structural encroachment
- Wayleaves
- Access easements
Based on the cases, courts have recognized several easements. The major ones are as follows:
Express Easement: Easements created through explicit language in binding documents, either “granted” or “reserved” in deeds or legal instruments.
Implied Easement: More complex, determined by courts based on property use and original parties’ intentions. Reflected in practices/customs but not recorded until a dispute is decided.
Easement by Necessity: Not created by necessity alone. Parcels without public access may have an easement over adjacent land if it’s necessary to reach it. Intention to provide access may exist, even if not recorded.
Easement by Prior Use: 5 elements: (a) common ownership, (b) severance, (c) use before/after severance, (d) notice, (e) necessary/beneficial.
Easement by Prescription: Implied easements granted after the dominant estate uses property continuously and openly for a prescribed number of years. Unlike adverse possession, prescriptive easements don’t require exclusivity.
Easement by Estoppel: Court may create an easement if the property owner misrepresents the existence of an easement during the sale and doesn’t include it in the deed to the buyer. Factors include non-written promises and money spent by benefiting party based on burdened party’s representations.
Eminent Domain: Government may acquire easements through eminent domain in a court condemnation proceeding. Fair market value must be compensated to the property owner per the U.S. Constitution’s Fifth Amendment.
Rights of an Easement
An easement can have many rights, such as:
Right to Light: The right to receive sunlight through a building’s windows or openings.
Aviation Easement: The use of airspace above a designated altitude for aviation purposes, including low-altitude crop spraying.
Railroad Easement: Allows access to and from a property adjacent to a railroad right-of-way.
Utility Easement: Grants access for the placement of utilities, such as storm drains, sewers, power lines, telephones, gas pipes, etc.
Sidewalk Easement: Typically located in public rights-of-way.
View Easement: Prevents view obstruction and allows for removal of blocking vegetation.
Driveway Easement: Provides access to a property that does not have direct road access.
Beach Access: In certain jurisdictions, residents can access public lakes or beaches by crossing private property.
Dead-end Easement: Designates a pedestrian path on a dead-end street to connect to a public road.
Recreational Easement: Some U.S. states incentivize large landowners to grant public access to their undeveloped land for recreational purposes (excluding motor vehicles).
Example of Easement
The following are a few examples of easement:
- A pond owner allows neighbors to fish in the pond.
- A property owner allows passers to cross through their property.
- A house owner privately negotiates to cross the sewer line under someone else property.
Termination of Easement
The following factors can terminate the easement:
Release: Agreement to terminate by the grantor and the grantee of the easement
Expiration: The easement reaches an expiration date, event, or condition.
Abandonment: The holder demonstrates an intent to discontinue the easement.
Merger: When one owner gains title to both dominant and servient tenement.
Necessity: If the easement was created by necessity and the necessity no longer exists.
Estoppel: The easement is unused, and the servient estate takes some action in reliance on the easement’s termination.
Prescription: The servient estate reclaims the easement with actual, open, hostile, and continuous use of the easement.
Condemnation: The government exercises eminent domain, or the land is officially condemned.
Statutory Termination: The easement is terminated by or under a statute law.
Conclusion
“Easement” is a legal term for a type of property right. Easements are sometimes established to benefit the entire area, such as a secure route to school for the neighborhood’s kids.
Businesses should research the prospective property to discover whether or not it has any easements; additionally, businesses should conduct surveys and get professional assistance from real estate attorneys if necessary.