Easement

Unlike a lease, an easement does not give the holder a right of "possession" of the property. A license only gives a holder a personal privilege to use land of another for a limited purpose. For example, a license is given when a landowner gives his neighbor a verbal permission to park a car on his driveway. A license can be terminated much more easily than easements.

An easement also differs from a license in that the benefits of most easements (appurtenant easement) flow to an adjacent parcel of land, not to a specific person (easement in gross). As such, the owner of the dominant tenement will continue to enjoy the easement, even if he is not the initial owner of the tenement.

The rights of an easement holder vary substantially among jurisdictions. Historically, the common law courts would enforce only four types of easement: the right-of-way (easements of way), easements of support (pertaining to excavations), easements of "light and air", and rights pertaining to artificial waterways. Furthermore, easement could only attach to an adjacent land, not to a specific person. Such rules no longer hold in many jurisdictions.

Types

Public and private easement

Appurtenant easement and easement in gross

An easement in gross benefits an individual or a legal entity, rather than a dominant estate. The easement can be for a personal (an easement to use a boat ramp) or a commercial use (an easement given to a railway to build and maintain a rail line across property). In earlier times, an easement in gross was neither assignable nor inheritable, but today commercial easements are freely alienable. This is not true in England and Wales where easements cannot be in gross. See also Profit-a-Prendre.

Floating easement

One case defined it as: "(an) easement defined in general terms, without a definite location or description, is called a floating or roving easement...." Furthermore, "a floating easement becomes fixed after construction and cannot thereafter be changed."

Structural encroachment

Dominant and servient tenement

Where an easement is appurtenant (in England and Wales, all easements), it will typically require the existence of two parcels of land, known as tenements. The dominant tenement is the land which benefits from an easement, while the servient tenement is the one which bears the burden of the easement.

For example, the owner of parcel B holds an easement to drive over a driveway on parcel A to gain access to his house. Here, parcel B is the dominant tenement, and parcel A is the servient estate.

Profit

A profit (or profit à prendre) is a right to take something off another person's land. At common law it was treated differently from an easement, something that is still the case in English law. In other jurisdictions a profit is treated as a special type of easement.

Examples of profits are the right to come onto the property of another and remove fruits, vegetables, and "fugacious minerals" (minerals that tend to be movable) such as gas or oil; by comparison, coal, which does not move, would not be considered a fugacious mineral. The rights of the profit-holder depend on the nature of the profit.

Creation

"Prescriptive easement" cannot give the holder of the easement a right to protect a view over a neighboring property no matter how long a property owner has had a view over the neighbor's property. This right to "ancient lights" has recently been recognized in some common law jurisdictions including California.

In contrast to an easement which only provides a non-possessory interest, adverse possession gives a complete title to real property.

Prescriptive easement is similarly acquired in England and Wales. If a claimant is able to show that the easement has been used, as of right, for a period of 20 years, the law assumes that the right to use the easement must have been granted - either long in the past (since time immemorial) or more recently where the evidence has been lost (lost modern grant). This can be disproved, for example by showing that the owner of the land was incapable of consenting. This distinguishes this from adverse possession (by which the ownership of the land itself can be acquired by long user) which does not rely on the fiction of a supposed grant but instead on the fact of the use/possession of the land.

Implied and express easement

Under an easement by estoppel, a grantor and an abutter may be estopped from denying the existence of a "paper street", which is shown on a subdivision plan, but has not yet been developed to become an actual road. Moreover, courts typically refer to the intent of the parties, as well as prior use, to grant an easement.

Easement by necessity

However, the landlocked owner might be required to obtain a license for a new commercial use or to cause damage during access (e.g., a logging road or blazed trails). Some states, also, frown on granting easements by necessity when the need was created by the owner's own actions, say, by selling off plots of land resulting in a landlocked parcel.

Some U.S. state statutes grant a permanent easement of access to any descendant of a person buried in a cemetery on private property.

In some states, such as New York, this type of easement is called an easement of necessity.

Easement by prescription

Easements by prescription, also called prescriptive easements, are implied easements that give the easement holder a right to use another person's property for the purpose the easement holder has used the property for a certain number of years, which varies from state to state. Prescriptive easement is not the same as adverse possession, which allows a party to acquire title to real property by asserting possession over it for the statutory period. Requirements vary among states to successfully claim adverse possession.

In California, for example, an adverse possessor is required to assert possession of the property AND pay all property taxes for at least five years. In New York, a claim of right is an additional element of both adverse possession and easement by prescription.

Prescriptive easements are a type of implied easement, in that they arise even though they are not expressly created or recorded. Unlike other implied easements, however, prescriptive easements are hostile (i.e., without the consent of the true property owner). Prescriptive easements do not convey the title to the property in question, only the right to utilize the property for a particular purpose. They often require less strict requirements of proof than fee simple adverse possession.

Once they become legally binding, easements by prescription hold the same legal weight as written or implied easements. Before they become binding, they hold no legal weight and are broken if the true property owner acts to defend his ownership rights. Easement by prescription is typically found in legal systems based on common law, although other legal systems may also allow easement by prescription.

Laws and regulations vary among local and national governments, but some traits are common to most prescription laws. Generally, the use must be open (i.e. obvious to anyone), actual, continuous (i.e., uninterrupted for the entire required time period), and adverse to the rights of the true property owner. The use also generally must be hostile and notorious (i.e., known to others). Unlike fee simple adverse possession, prescriptive easements typically do not require exclusivity.

The period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws (usually based on the statute of limitations on trespass). Generally, if the true property owner acts to defend his property rights at any time during the required time period the hostile use will end, claims on adverse possession rights are voided, and the continuous use time period resets to zero.

In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal property owner, the prescriptive easement may become a regular or implied easement rather than a prescriptive easement and immediately becomes binding. In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement.

Government owned property held for common use is generally immune from prescriptive easement in most cases, but some other types of government owned property may be subject to prescription in certain instances. In New York, such government property is subject to a longer statute of limitations of action, 20 years instead of 10 years for private property.

Prescription may also be used to end an existing legal easement. For example, if a servient tenement holder were to erect a fence blocking a legally deeded right-of-way easement, the dominant tenement holder would have to act to defend his easement rights during the statutory period or the easement might cease to have legal force, even though it would remain a deeded document.

Right-of-way for access is among the most common easement by prescription.

Easement by the government

A similar right to property would appear to exist in the law of England and Wales following the incorporation of the European Convention on Human Rights into English law, in that any deprivation of the rights of the owner of property must be "in accordance with law" as well as "necessary in a democratic society" and "proportionate".

Easement by Prior Use

Termination

• Agreement to terminate by the grantor and the grantee of the easement
• Expiration of the time allowed for the easement
• Abandonment or express intent to discontinue the easement
• Merger where one owner possesses both dominant and servient tenement
• End of necessity which created easement by necessity
• Estoppel, where a holder of the easement stopped using it and a third party detrimentally relied thereon
• Prescription where a holder of the easement uses someone else to use the easement for a period of statute of limitations
• Condemnation by the government through eminent domain
• Death of the owner of an easement in gross

Rights

• Right to light, also called solar easement. The right to receive a minimum quantity of light in favour of a window or other aperture in a building which is primarily designed to admit light.
• Aviation easement. The right to use the airspace above a specified altitude for aviation purposes. Also known as avigation easement, where needed for low-altitude spraying of adjacent agricultural property.
• Railroad easement.
• Utility easement including:
• Storm drain or storm water easement. The easement carry rainwater to a river, wetland, detention pond, or other body of water.
• Sanitary sewer easement. The easement carry used water to a sewage treatment plant.
• Electrical power line easement.
• Telephone line easement.
• Fuel gas pipe easement.
• Sidewalk easement. Usually sidewalks are in the public right-of-way, but sometimes they are on the lot.
• View easement. Prevents someone from blocking the view of the easement owner, or permits the owner to cut the blocking vegetation on the land of another.
• Driveway easement, also known as easement of access. Some lots do not border a road, so an easement through another lot must be provided for access. Sometimes adjacent lots have "mutual" driveways that both lot owners share to access garages in the backyard. The houses are so close together that there can only be a single driveway to both backyards. The same can also be the case for walkways to the backyard: the houses are so close together that there is only a single walkway between the houses and the walkway is shared. Even when the walkway is wide enough, easement may exist to allow for access to the roof and other parts of the house close to a lot boundary. To avoid disputes, such easement should be recorded in each property deed.
• Beach access. Some jurisdictions permit residents to access a public lake or beach by crossing adjacent private property. Similarly, there may be a private easement to cross a private lake to reach a remote private property, or an easement to cross private property during high tide to reach remote beach property on foot.
• Dead end easement. Sets aside a path for pedestrians on a dead-end street to access the next public way. Could be contained in covenants of a homeowner association, notes in a subdivision plan, or directly in the deeds of the affected properties.
• Recreational easement. Some U.S. states offer tax incentives to larger landowners if they grant permission to the public to use their undeveloped land for recreational use (not including motorized vehicles). If the landowner posts the land (i.e., "No Trespassing") or prevents the public from using the easement, the tax abatement is revoked and a penalty may be assessed. Recreational easement also includes such easements as equestrian, fishing, hunting, hiking, biking (e.g., Indiana's Calumet Trail) and other such uses.
• Conservation easement. Grants rights to a land trust to limit development in order to protect the environment.
• Historic preservation easement. Similar to the conservation easement, typically grants rights to a historic preservation organization to enforce restrictions on alteration of a historic building's exterior or interior.
• Easement of lateral and subjacent support. Prohibits an adjoining land owner from digging too deep on his lot or in any manner depriving his neighbor of vertical or horizontal support on the latter's structures e.g. buildings, fences, etc.
• Communications easement. This easement can be used for wireless communications towers, cable lines, and other communications services. This is a private easement and the rights granted by the property owner are for the specific use of communications.

Trespass upon easement

Open and continuous trespassing upon an easement can lead to the extinguishment of an easement by prescription (see above), if no action is taken to cure the limitation over an extended period.

Restrictive easement

Prescriptive easements for view, or the right to prevent a neighboring property owner from blocking the view across the property from a neighboring property, are not recognized in any U.S. state. This type of easement is referred to as "ancient lights" in some non-U.S. jurisdictions. An easement for view can be obtained by grant or reservation in most U.S. jurisdictions when property is conveyed.

Another type of restrictive easement is an historic preservation easement in which the owner of a historic structure agrees not to change specified historic elements of the facade.

The primary difference between location preservation ordinances and historic preservation easements is that local ordinances are discretionary and can be removed and a historic preservation easement runs with the property forever.

The value of easements imposed on historic properties already protected by local ordinances has recently been the subject of discussion by some people who have claimed that “where the subject property is located in a local historic district in which there are existing restrictions, regulations and controls, the terms of the easement are substantially redundant.”

Easement-encumbered properties within local historic districts should sell at a penalty relative to unencumbered properties in such districts because the easement typically imposes stricter controls than those contained in the usual preservation ordinance.

Easements often prohibit changes in property use or changes to significant architectural features while ordinances may permit such changes, subject to review and approval by a board of architectural review.

Further, unlike preservation ordinances, the easement typically contains no relief for "economic hardship" commonly found in governmental regulation of land use.

Easements are granted in perpetuity while historic district ordinances and local zoning practices change over time to reflect the dynamics of a changing political and/or economic interests of a community. An easement on a historic urban property is generally intended to preserve and conserve the historic, architectural, scenic and cultural values of a certified historic structure.

An easement donation reduces the basis in subsequent years by a fraction equal to the ratio of the value of the easement donation divided by the value of the property just before the easement donation takes place. This Basis Adjustment will cause a reduction from the owner’s depreciation schedule and or increase one’s capital gain upon sale of subject property.

Easements provide for judicial extinguishment in the event the historic structure is destroyed. The proceeds from the extinguishment are prorated at a fraction equal to the ratio of the value of the easement donation divided by the value of the property just before the easement donation takes place, and paid to the easement holding organization (not the landlord). In the case of properties located in registered historic districts, the easement will also protect the historic district through limitations on uses that might jeopardize the architectural scale, style and sense of cultural identity of the district. The easement does this by restricting alteration and modification of the property in ways that would change its historic appearance or remove or replace historic building fabric. Such an easement typically contains provisions:

1. Prohibiting demolition.
2. Prohibiting or severely limiting subdivision.
3. Prohibiting or limiting further construction or development. Depending upon the property, the easement may also prohibit or limit use changes.
4. Prohibiting changes to exteriors (and on occasion interiors) of historically or architecturally significant buildings depending upon their significance, barring changes to facades visible from public ways or prohibiting changes without prior review by the holding organization.
5. Typically, easements on significant historic buildings will regulate changes to all facades, regulate how historic materials are replaced or repaired, prohibit or regulate placement of commercial or other signs and prohibit changes inconsistent with the building's historic character.
6. Requiring maintenance in conformity with agreed standards, typically those set by the US Department of Interior, to protect the historic structure.
7. Maintenance in excess of that ordinarily anticipated for comparable structures is typically required.
8. The cost of conducting "interruptive maintenance" out of the ordinary building maintenance cycle to correct what, in economic terms, are relatively minor defects (such as repainting or repair of deteriorated brickwork, cornices or window elements more frequently than would be required by market conditions) must be considered.
9. Requiring the owner to keep the property fully insured against casualty loss and to reconstruct improvements if they are destroyed. Again, not all preservation easements require the owner to insure the property or to replace it in the event of casualty.
10. Prohibiting dumping of trash.
11. Allowing for certain rights held by the holding organization, including periodic inspection, review and enforcement rights.
12. On structures within historic districts provide that any replacement structure must be constructed according to design plans approved by the easement holder.

Torrens title registration

Prescription

• immemorial user
• long user
• lost modern grant
• under the Prescription Act 1832

The question of how far the owner of the servient tenement may prevent prescription by giving a blanket permission to use the easement is uncertain. It was suggested by Warner J Rafique v The Trustees of The Walton Estate (1993) 65 P. & C.R. 356, that the owners of an easement of way could prevent the possibility of the acquisition of prescriptive rights by displaying a notice on the road in question stating that anybody using the road did so "only be permission of the Trustees and that that permission might be withdrawn at anytime."

See also

• Servitude in civil law
• encumbrance
• right of light
• air rights
• Energy law
• fair use, an analogous concept in copyright law
• land rights
• prior appropriation water rights
• right of public access to the wilderness
• riparian water rights
• title (property)

External links

• UPL (Utility Partnership Limited), UK wayleaves provider
• Real Estate Taking and Easements)
• Easements and servitudes in South Africa

Legal Real Estate Books