An easement is a non-possessory right to use the land of
another for a specific purpose. Once an
easement is granted, the grantor may not interfere with the grantee's use of
that easement. There are two categories
of easements:
- Easements
Appurtenant – An easement appurtenant is an easement which benefits
adjoining property regardless of who owns that property. An easement
appurtenant can exist only if there is a dominant estate which benefits
from the easement and a servient estate which is burdened by the
easement.
- Easements
in Gross – An easement in gross is conveyed to a specific individual or
entity. Generally, easements in gross cannot be sold, assigned, or
inherited.
Types of Easements in Arkansas
An easement may be express or may be established by
operation of law. An express easement is
created by deed, contact, or other written agreement. Arkansas law also recognizes the following
types of easements:
- Easements
by Implied Reservation – To establish an easement by implied reservation,
a claimant must prove that there was a unity of title between the dominant
estate and the servient estate and that a subsequent sale of the property
over which the easement is claimed took place. The claimant must also prove
that his use of the easement has been apparent, continuous, and necessary
and that his continued use of the easement is essential to his further use
and enjoyment of the dominant estate.
- Easements
by Necessity – To establish an easement by necessity, a claimant must
prove three elements. First, he
must prove that title to the dominant and servient estates was at one time
held by the same person. Next, he
must prove that unity of title was severed by a conveyance of either the
dominant or the servient estate.
Finally, the claimant must prove that the easement is necessary for
the use and enjoyment of the dominant estate and that that necessity
existed at the time unity of title was severed and at the time the easement
was first exercised.
- Easements
by Prescription – The use of unoccupied and unenclosed lands for passage
is considered permissive. Therefore, in order to establish an easement by
prescription, the claimant must show that his use of the land was open and
notorious and adverse to the owner of the property and that said use
continued for a period of at least seven years.
Easement and Property Boundary Disputes
Easement issues may arise when one land owner erects
improvements which encroach on the adjacent property. Easement issues may also arise when an easement
holder misuses the easement or when the owner of the servient estate interferes
with the easement holder's use of the easement.
Help from a Real Estate attorney in AR
An experienced real estate attorney is the best weapon
against easement disputes. A real estate
attorney can assist in drafting the documents necessary to establish an
easement. Additionally, where there is
uncertainty about boundary lines or the existence of an easement, a qualified
real estate attorney can interpret legal descriptions, surveys, and deeds and
contracts which purport to establish an easement in order to assist you in
clarifying your rights and obligations.