An easement is a non-possessory interest in the land of another. An easement is created when a land owner grants a right to use his property to another. Common types of easements include:
- Driveway easements;
- Ingress and egress easement;
- Utility easements;
- Right-of-way easements; and
- Sewer easements.
Under North Carolina law, easements usually fall into one of two categories:
1. Easements Appurtenant –
An easement appurtenant benefits adjoining land, no matter who owns the
adjoining land. An easement appurtenant
attaches to and passes with the land.
Easements appurtenant are characterized by the fact that there must be a
dominant tenement and a servient tenement.
The dominant tenement is the one which is burdened by the easement; the
servient tenement is the one which benefits from the easement. An example of an
easement appurtenant is one where the seller of a landlocked parcel of land conveys
a right of ingress and egress to the purchaser.
2. Easements in Gross – An easement in gross benefits a specific individual or business entity. Typically an easement in gross granted to an individual expires upon his death. An easement in gross granted to a company, such as a utility company, on the other hand, may be sold, assigned, or inherited.
Creating Easement Agreements and Types
North Carolina law recognizes five methods of creating easements.
Express Grant – An express easement is created by a written agreement between the parties. A deed which grants an easement from one land owner to another is an express grant.
Implied Easement – An implied easement is one imposed by law and may be inferred from the facts surrounding the transaction. The most common implied easement is an easement by necessity. An easement by necessity is one which is indispensable to the grantee's reasonable use and enjoyment of the dominant tenement.
Express Reservation – An express reservation retains in the grantor a non-possessory interest in the land being conveyed to the grantee. An example of an express reservation is the retention by the grantor of the right to fish in the pond on the property he is selling to the grantee.
Easement by Prescription – An easement by prescription arises by hostile, open, and notorious use of another's property for a period of twenty years or more. If a person is using another's property with his permission, courts will not find that he has a prescriptive easement.
Easements by Condemnation – Easements by condemnation arise where access is required for a public use, such as a road. State and local governments acquire easements by condemnation by virtue of the power of eminent domain.
Avoiding Easement Issues
Easement issues typically arise when one property owner erects improvements which encroach on adjoining property or when someone begins using another's property without his permission. The best way to avoid easement issues is to get a survey before erecting improvements and before beginning to use property which you're not sure you own.
If you are involved in an easement dispute or believe that someone is using your property illegally, you should contact a real estate attorney. An experienced real estate attorney will run a title search and order a survey if you don't have a current one. After reviewing these documents and analyzing the facts of your case, he will advise you of your options and recommend the best course of action.