An easement is a non-possessory right of use over the land of another and obligates the owner of the servient tenement (the land burdened by the easement) not to interfere with any uses authorized by the easement. Although most easements run with the land and are permanent, an easement may terminate after a specific period of time or when title to the dominant tenement (the property which benefits from the easement) is transferred.
Creation of Prescriptive Easements in AK
Under Alaska law, in order to establish a prescriptive easement, a claimant must demonstrate that:
- His use of the easement was continuous and uninterrupted;
- He believed he was the owner of the property and was not merely using the easement with the permission of the owner; and
- His use of the easement was reasonably visible to the owner of the servient property.
Although the requirements to establish a prescriptive easement are similar to those which must be proven to establish title by adverse possession, unlike in adverse possession cases, a claimant in a prescriptive easement case need not prove that his possession or use of the subject property was exclusive. However, in cases involving both adverse possession and prescriptive easements, the claimant's use must continue for a period of at least ten years before he may bring a claim.
Removing An Easement By Prescription
Just as an easement may be established by prescription, under Alaska law, it may also be extinguished by prescription. To prove that an easement has been extinguished by prescription, the owner of the servient tenement must establish that his use of the easement was open, notorious, and continuous for a period of at least ten years and that his use was so adverse and hostile to that of the easement holder as to trigger the prescriptive period.
The Alaska Supreme Court has stated that the prescriptive period is triggered when the servient landowner's use of the easement unreasonably interferes with the easement holder's use of the easement. What constitutes unreasonable interference will be examined on a case by case basis. However, a general rule is that temporary improvements to an unused easement which are easily and cheaply removed do not constitute unreasonable interference. On the other hand, permanent and expensive improvements which would be costly to remove and might damage the land will typically be looked upon as unreasonably interfering with the easement holder's use of the easement.
Easement PropertyBoundary Disputes and Issues
One of the most common easement issues involves encroaching improvements. In instances where a landowner is unsure of where his land stops and his neighbor's begins, he may mistakenly erect improvements, such as a fence, wall, or driveway, on his neighbor's property. When one landowner erects improvements which encroach on the adjacent property, he may be required to pay the adjacent landowner to acquire an easement or he may be required to remove the offending improvements.
Help from a Real Estate Attorney in Alaska
If you are involved in a boundary line dispute, you should hire a real estate attorney. A real estate attorney may be able to negotiate an easement with the adjoining property owner. A real estate attorney will draft the documents necessary to create the easement as well as any additional documents necessary to settling the dispute.