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.