Property easement law, also known as right of way laws, describes the rights to use some part of a property for a specific purpose, types of easements, and easements vs. right of way. A survey will define the property lines to hopefully prevent any questions of land ownership or the need to file for prescriptive easements.
An express easement may be contained in the deed to the property or in another document. Some examples include:
- A utility company can run power lines on a property
- Adjacent property owners may enter into an agreement to share a common driveway that extends over both properties.
An implied easement or prescriptive easement may arise when a use of property continues for a certain period of time. For example, if a neighbor has been crossing the corner of a property for years, the neighbor may have acquired a prescriptive easement to continue to cross the property in the same manner.
The property right of way laws allow someone the right to travel across property owned by another person.
For information on creating an easement, please see this article on Easement Agreements
Easement Law by State
What are Easements Used for?
Easements are something that buyers need to be aware of when purchasing property. The easement agreements are generally recorded so the buyer should carefully review the public records to make sure there are no restrictions on the use of the property that would affect their intended use. This is especially important if you are going to do remodeling or add room additions to residential property.
An Easement is given by one party to another to use the land or prevent the use of the land to others that do not belong to holder of the easement. The property that is burdened by the easement is called the servient estate, and the property that is benefited by the easement is called the dominant estate. If the easement is a benefit to the land, then it is referred to as appurtenant to the land and runs with the land. When the easement benefits someone in a personal way, it is referred to as easement in gross. An easement given by the owner to a utility company is an example of an easement in gross.
Benefits of Easements
Easements that are for the benefit of the land known as appurtenant are generally conveyed through a deed and run with the land. Easements in gross, which are for the benefit of another to use the land, are not generally conveyed by deed, but could be if the owner so desires. Easements in gross are generally given by the owner to the holder via an agreement that is recorded in the county records.
The easement can be granted for an indefinite period of time or for a limited period of time depending on the type of easement and its use. Easement laws vary from state to state so you should check your state laws.
- Public utilities. Electric lines, telephone poles, cable lines.gas and water lines.
- Ingress and egress. A right of way for driveway or road of neighboring property owners.
- Water rights and drainage.
- Encroachment of a structure or building onto the land.
Public Easement and Private Easement
- Public easements are given to the public for a right that was reserved at the time the land was deeded. Such easements may be for use of a highway or road, a pathway or air space.
- A private easement is for use of the land given by the owner of the land to a specific individual or entity
Types of easements
- Right-of-way. Ingress and egress of neighboring properties for a driveway or road.
- Easements of Support. Buildings may be physically joined together by a party wall and mutually support each other. An easement would be created restricting the demolition of one building because it could cause the collapse of the other building. This may also apply to the ground if removed too close to a neighboring building and would cause its collapse.
- Easement by the Government. The government could obtain the use of land by condemnation; the right to use the land for public good. The government could take the property by an eminent domain process. Typically this happens when the government needs to build a highway or road.
- Easement by Permanent Use. This concept is referred to as a prescriptive easement. Someone has been using a portion of the property owner’s property without their permission for a period of five years. If the owner did not stop the use during the five year period, then the person now has the right to continue using the land. Basically the prescriptive easement involves the loss of use of land to the owner.
- Dead End Easement: An easement from a dead end road to connection and use of the main road.
- Recreational Easement: A recreational easement is given for the recreational use of the land only.
- Conservation Easement: A conservation easement is given by the owner of the property voluntarily to a qualified conservation organization, which is normally a government agency or a land trust. The purpose of the easement is to permanently restrict the use of the land so that the land may be preserved and protected against development. Wetlands are an example of the land that the government or a land trust may want preserved. Restrictions vary depending on the use of the land.
Rights of Easement
Easements and rights and restrictions are complicated. If you need help in understanding the laws of easement, please consult with a Real Estate Attorney.