Cadden & Fuller LLP Cadden & Fuller LLP

A Client-Focused Approach to Business and Real Estate Law

What are the 4 types of easements?

On Behalf of | Feb 12, 2021 | Commercial Real Estate |

If you are the owner of a property, you can do almost anything you want with it, although the law does impose some restrictions. If you are not the owner, you generally do not have the right to do anything with the property.

However, the law does allow for an exception to that rule. An easement grants you certain legal rights to a property even if you do not own it. You may be able to obtain an easement by petitioning the court or negotiating a contract with the owner. Different easements do different things, and the type of easement you need determines whether or not you have to go to court to get one.

1. Necessity

An easement of necessity allows you to use the other property owner’s land to access something that is essential for your use and enjoyment of your own property. Examples include a road or a waterway. The court must issue an easement of necessity. You cannot negotiate this type of easement directly with the property holder.

2. Implication

An implied easement is similar to an easement of necessity in that it requires the court’s recognition. In this case, the easement may not be essential but there may be a strong indication that the property owner intended to grant you one.

3. Prescription

If you have already used the property for at least five years, you may be able to obtain a prescriptive easement even without the property owner’s consent. An example of a situation in which this may occur is if you built something, such as a fence or a driveway, that you believed was right on the boundary line but later discovered was actually on the other owner’s property.

4. Express Grant

An express grant easement is one that you and the owner of the property agree to. To be valid, the agreement must be in writing. This is for the protection of both parties.

Understanding the different types of easements and which one of them applies to your situation is essential for protecting your interests.