Real Estate Law: Easement Basics

Introduction

You are interested in purchasing a home, but when you view the house you notice that the only access to it is via a driveway crossing the neighbor’s property. How will the driveway impact your potential purchase? A cable television company is seeking to install its cable lines and would like to run its cable along existing electrical poles. Can the cable-company negotiate only with the electric company or must it negotiate with each of landowners whose property is crossed by the electrical poles? Both of these scenarios potentially involve an easement, a property right that gives its holder a nonpossessory interest in another person’s land. Easements regularly impact all types of real estate transactions and are increasingly utilized for conservation and historic preservation purposes. Despite their prevalence, many people lack a clear understanding of this property interest and numerous problems occur in the drafting, interpretation and implementation of easements.

Nature, Creation, Scope, Transferability, and Termination of Easements

An easement is commonly defined as a nonpossessory interest in another person’s land. Its nonpossessory nature is one of its primary but often most confusing characteristics. It allows the easement holder to use property that he or she does not own or possess. But it does not allow the easement holder to occupy the land or exclude others from the land unless they interfere with the easement holder’s use. In contrast, the possessor of the land may continue to use the easement and may exclude everyone except the easement holder from the land. For instance, if Alvin owns a piece of property and grants Barbara a right-of-way on the road across the property, Barbara has an easement in Alvin’s property. Barbara may use the road, but may not stop others from also using the road except to the extent that their use interferes with her use of the road. Alvin may exclude everyone except Barbara from crossing his property. Alvin may also continue to use the road himself.

Land burdened by an easement is called a “servient estate” and the land benefited by the easement is known as the “dominant estate.” If the easement benefits a particular piece of land it is “appurtenant” to the land. If the easement only benefits an individual personally, not as an owner of a particular piece of land, the easement is termed “in gross.” Most easements are affirmative, which means that they authorize use of another’s land. Less common are negative easements, which usually involve preserving another’s access to light or view.

Easements are usually created by conveyance in a deed or other written document such as a will or contract. Creation of an easement requires the same formalities as the transfer or creation of other interests in land. Typical requirements are as follows: a written instrument, a signature, and proper delivery of the document. In limited circumstances, a court will imply an easement as a matter of law. Two common easements created by implication are easements of necessity and easements implied from quasi-easements. Easements of necessity are typically implied to provide access to a landlocked piece of property. Easements implied from quasi-easements are based on a landowner’s prior utilization of part of his or her property (quasi-servient estate) for the benefit of another portion of his land (quasi-dominant estate). This quasi-easement may become an implied easement once either the quasi-servient land or the quasi-dominant land is transferred to a third party. Other methods of establishing easements include prescriptive use (i.e. by the routine, adverse use of another’s land), estoppel (a legal doctrine involving reliance on the words or actions of another person), custom, public trust, and condemnation.

After an easement is created, questions often arise concerning its location, dimensions, and scope. These questions must be resolved on a case-by-case basis and are impacted by the method of the easement’s creation. Questions involving matters clearly covered by the written document, or the prior use, or necessity that created the easement may be resolved relatively easily. Frequently, however, the written document, prior use, or necessity does not clearly resolve the question. Written documents creating easements are often vague or incomplete and inferences from prior use or necessity are imprecise. In these cases, the parties’ intent is uncertain and must be construed by the courts.

As a general rule, an easement holder has a right to do “whatever is reasonably convenient or necessary in order to enjoy fully the purposes for which the easement was granted” as long as he or she does not unduly burden the servient land. Conversely, the owner of the servient land may make any use of that land that does not unduly interfere with the easement holder’s use of the easement. What constitutes an undue burden depends upon the facts of each individual situation. For instance, an increase in traffic over an easement giving access to a beach resort may not necessarily constitute an undue burden. But, the traffic resulting from changing a dominant estate from private use to a commercial business might constitute an additional burden on the servient estate. Reasonable use of an easement is not fixed at a particular point in time. The concept of reasonableness includes a consideration of changes in the surrounding area and technological developments. For instance, courts have allowed an easement holder to convert a railroad right of way to a recreational trail, cut trees within an access easement, and replace a low-pressure gas pipeline with high-pressure equipment.

If a court determines that the servient estate is unduly burdened by an unreasonable use of the easement, the servient estate holder has several remedies. These include injunctions to restrict the dominant owner to an appropriate enjoyment of the easement, monetary damages when the easement holder exceeds the scope of his or her rights and improperly injures the servient estate, and in some instances extinguishment of the easement. Likewise, remedies exist for interference by the servient owner. Interference with an easement is a form of trespass and courts frequently enjoin the obstruction of an easement and may order the removal of encroaching structures at the servient owner’s expense. If interference with an easement causes diminution in the value of the dominant estate, courts may also award compensatory damages to the easement holder.

The transferability of easements must also be considered when undertaking a real estate transaction. An easement’s transferability depends on its nature (i.e. whether it is appurtenant or in gross). In general, an easement appurtenant is transferred with the dominant property even if this is not mentioned in the transferring document. But, the document transferring the dominant estate may expressly provide that the easement shall not pass with the land.

Because noncommercial easements in gross are treated as a right of personal enjoyment for the original holder, they are generally not transferable. Recreational rights such as hunting, camping and fishing are the most common examples of nontransferable, noncommercial-easements in gross. Several states, however, have enacted statutes designed to facilitate the transfer of easements in gross. The transfer of easements in gross for commercial uses such as telephones, pipelines, transmission lines, and railroads is often permitted.

Courts generally assume easements are created to last forever unless otherwise indicated in the document creating the easement. Despite this, an individual granting an easement should avoid any potential legal or interpretive problem by expressly providing that the easement is permanent and utilizing appropriate words of inheritance. Although permanent easements are the norm, they can be can be terminated in numerous ways. For instance, an easement may be created for a limited or conditional duration. When the time passes or the condition occurs, the easement ends. Easements of limited duration are commonly used to provide temporary access to a dominant estate pending the completion of construction work. An easement may also be terminated when an individual owning the dominant estate purchases the servient estate, or when the holder of an easement releases his or her right in the easement to the owner of the servient estate. This release must be in writing. Abandonment of an easement can also extinguish it, but as a general rule, mere nonuse of an easement does constitute abandonment. Under some circumstances, misuse or the sale of a servient estate may terminate an easement. Finally, condemnation of an easement by a public authority or condemnation of the servient estate for a purpose that conflicts with the easement terminates an existing easement.

Conclusion

Easements give an easement holder the right to use or to prevent the use of property he or she does not own or possess. This places the easement holder and possessor of the servient estate in the unique position of simultaneously utilizing the same piece of land. The prevalence of easements and their nonpossessory nature creates a unique set of issues in drafting, interpretation and implementation. It is therefore, important to have a basic understanding of the manner in which they are created, their scope, transferability, and methods of termination. Whether an individual, business, or government entity wishes to create an easement, purchase property burdened by an easement or determine the nature of a property interest, experienced legal counsel should be consulted.

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APPENDIX

1. Roger Bernhardt, and Ann M.Burkhart, Real Property in a Nutshell, 2000.

2. Jon W. Bruce and James W. Ely, Jr., The Law of Easements and Licenses in Land, 1988

3. Stephen A. Siegel, A Student’s Guide to easements, Real Covenants, and Equitable Servitudes, 1988.