What Is An Easement?

By 

Emily Kordys

Updated 

February 8th, 2021

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How are easements created? l What are the most common types of easements? l What restrictions do easements place on a property? l How are easements terminated? l Do easements affect property value? l Buying a home with an easement

An easement is a right granted by one property owner to another to use part of their land or property for a specific purpose. [1]

The owner of the land retains the full legal title to the property, despite the easement. The easement holder has the right to use the property for a specific purpose — but cannot do anything to interfere with the owner’s right to use it.

The owner of the easement is often referred to as the owner of the dominant tenement. The owner on whose land the easement exists is the owner of the servient tenement.

Examples of easements include the right to access and use private roads or paths or giving companies the right to use a property for a specific purpose, such as granting an electrical company access to a wire or pole.

How are easements created?

Different ways easements are created
Express easements
Two parties sign a legally binding document outlining the specifics of the easement
Implied easements 
Unrecorded easements that usually favor one property or land owner
Easement by necessity
Created when one party has no choice but to use another’s property

Easements can be created in a variety of ways through express grants, by implication, and by necessity. Most easements are transferable and pass from owner to owner when a property is sold or gifted.

Express easements

Express easements are created when two parties agree on the easement and sign a legally binding document outlining the specifics. The signed documents typically come in the form of wills or deeds.

Express easements can either be affirmative or negative. Affirmative easements grant the easement holder access to a specific portion of another’s property for a specific purpose. Negative easements are legally binding promises not to do something, such as building a structure that would block a neighbor’s view.

These easements typically stay in place unless they are terminated by both parties. This means if the owner of the dominant or servient tenement gifts or sells their property to someone else, the easement will stay in place and continue to be binding.

Implied easements

Implied easements are unrecorded easements that typically favor one owner over another. That simply means that they're not written down.

Unrecorded easements typically come about when a property owner sells a portion of their land or when the property is subdivided and sold in several parcels.

Implied easements may be created when:

  • A parcel of land is divided into two or more parcels, with the parcels going to different owners
  • The easement may have existed before the property was divided
  • There is a necessary use for the parcel of land

Implied easements are informal agreements that are usually implied based on the circumstances surrounding the land. It’s easy for legal trouble to arise since terms aren’t nailed down on paper but are binding nonetheless.

Issues typically arise after a real estate purchase is complete since there is no written agreement showing the easement. This is where things can get murky and the courts may get involved if issues surrounding the easement can’t be worked out.

If you want to know the ins and outs of an easement for a property, it’s important to contact a real estate agent who can help you fully understand what you’re getting involved with.

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Easement by necessity

An easement by necessity is created when one party has no choice but to use another’s property. These easements create access to private roads for homes that are landlocked by other properties.

When one party does not agree to an easement by necessity, they typically end up in court to hash out the terms and discuss why the easement is a necessity.

What are the most common types of easements?

Types of easements
Easement appurtenant
An easement that benefits one parcel of land over another parcel of land
Easement in gross
An easement which allows an individual or an entity the right to use someone else’s land or property
Easement by prescription
An easement that is granted by a court after a party or entity uses another’s land continuously for an extended period of time, uninterrupted, and without permission

Many different types of easements exist. The three most common and used are easement appurtenant, easements in gross, and easements by prescription.

Easement appurtenant

An easement appurtenant is an easement that benefits one parcel of land (the dominant tenement) over another parcel of land (the servient tenement). These types of easements are tied to the land.

The dominant tenement benefits from having the easement while the servient tenement is subject to the easement.

An easement appurtenant is transferred automatically when the servient or dominant tenement is sold to a new owner.

These easements are typically used by companies that need access to a person’s property, such as an electrical company. Electrical companies are common easement holders since they need to be able to access electrical poles or lay down new wiring.

Easement in gross

An easement in gross grants permission to a person or entity the use of another’s property. This type of easement benefits the holder, not the property. The holder is able to use the land for as long as they are alive or as long as the other party owns the property.

For example, a property owner can agree to an easement in gross with a friend who enjoys fishing on their lake. The friend would be able to fish whenever they wanted until they died or until the property was sold by the owner.

If a property is sold or inherited by a new party, the easement in gross becomes invalid and the new owner is not obligated to act under the previously agreed easement.

Easement by prescription

An easement by prescription is typically granted by a court after a party uses someone else’s land continuously for an extended period of time. The party would have had to use the land without the owner’s permission openly and uninterrupted.

The amount of time needed to pass for an easement by prescription depends on state law, ranging from 5 to 20 years. Some states may have further requirements for the creation of an easement by prescription.

What restrictions do easements place on a property?

An easement doesn’t allow the holder to occupy the land or exclude others from the land unless they interfere with the easement’s specific purpose.

The property owner may continue to use the easement and can exclude everyone except the easement holder.

The owner of a property typically cannot build on top of or too close to an easement without the approval or authority of the easement holder. For example, imagine a power company has an easement running through your backyard. If you plan to build a pool, you would have to ask the company for permission to build.

How are easements terminated?

Easements continue indefinitely unless they are terminated. In most cases, a court does not need to get involved.

Terminating an easement in gross

An easement in gross is difficult to terminate as they are usually granted to a person. They cannot be voided unless the person passes away or the easement is no longer needed.

An easement in gross is also non-transferable — meaning the easement holder cannot pass it along to another individual or entity.

Terminating an appurtenant easement and easements by prescription

Appurtenant easements and easements by prescription are the easiest to terminate or end. They can both be terminated through a written agreement where both parties agree to end the easement.

Other ways to terminate an easement

Easements can also be terminated through abandonment, a merger, or ending by necessity.

Terminating through abandonment

Any easement can be terminated through abandonment by the owner of the dominant tenement.

Two things must typically occur for termination of abandonment:

  • The owner must clearly show they have given up their rights to the property.
  • An intention or action that shows the owner relinquishes control and use of the easement.

Any type of action can be used to show the owner of the easement is no longer interested.

For example, a shepherd was granted an easement by a property owner for access to a path in order to herd sheep. If the shepherd sells the sheep and moves away, this shows clear action and intent that the easement is no longer needed and has been abandoned.

Non-use of the easement alone does not qualify as abandonment.

Mergers

A merger is defined as a combination of two things, such as parcels of land. Mergers can occur when it comes to easements.

Any easement can be extinguished if the owner of the dominant tenement obtains title to the servient tenement.

Ending by necessity

An ending by necessity sounds exactly like its title. This typically occurs when there is no further need for the easement and it is terminated.

Do easements affect property value?

Easements typically do not create any effect on property value unless they severely restrict the use of the property.

Home sellers and homebuyers can compare easement sales with non-easement sales for homes in the area to see if there are any monetary consequences to having an easement.

Another method is to look at past sales of the specific home. By comparing past home sales values with other similar homes in the area, buyers and sellers are able to get some context for how the easement might influence the sale price.

If you want to know for sure if the easement could affect your property value or the future property value of the home you wish to purchase, contact a real estate agent!

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Buying a home with an easement

Before buying a home, it’s important to know what you’re getting into. Luckily, there are a few tricks of the trade to find out if your dream home has an easement.

It’s important to read the fine print

Home sellers are required by law to list any known easements on a property in any disclosures or documents. These documents are read by homebuyers prior to closing on a house and include information on anything that could affect the value or enjoyment of their new home.

Homebuyers can also visit the county clerk’s office typically located at each county’s courthouse to find out if there are any easements on their future home. Easements are usually listed on property deeds.

Know the ins and outs of the easement

Easements are legally binding, so it’s important to understand their purpose and how they can impact the homeownership experience.

It’s important to always consult a real estate agent as they can not only help you find the home of your dreams but also help you understand everything that comes along with it, including easements.

ARTICLE SOURCES
[1]

Brittanica Encyclopedia. "Easement." Page(s) 1.