An easement gives its holder the right to use the property of another for a specific purpose. Under Georgia law, an easement may be created in four ways:
- By express grant;
- By prescription;
- By implication;and
- By compulsory purchase and sale pursuant to a court order.
Easements By Express Grant
An easement by express grant, also known as an express easement, is established in a deed, contract, or other written agreement. Generally, an express easement sets forth the location, dimensions, and permissible or intended use of the easement.
Easements By Prescription
Under Georgia law, a claimant must prove four elements before a court will find that he has acquired an easement by prescription
- That his use of the easement has been uninterrupted for a period of seven years or more;
- That the width of the easement does not exceed 20 feet;
- That the width of the easement has not deviated from its original width; and
- That he has kept the easement open and in repair for seven uninterrupted years.
The seven year statutory period for prescriptive easements applies only to improved lands. For wild lands, the statutory period to acquire a prescriptive easement is twenty years.
Easements By Implication
When a grantor conveys a parcel of land that is landlocked, public policy dictates that an easement for ingress and egress be implied. Easements by implication are predicated on the theory that a means of accessing a piece of property is necessary for its reasonable use and enjoyment by its owner. Implied easements run with the land and pass to each subsequent owner of the subject property. However, if the necessity which gave rise to the implied easement ceases to exist because the easement holder acquires other land which affords him access to his property, the easement terminates.
Unlike some states, Georgia does not recognize an implied reservation of an easement. In some states, if a landowner conveys a parcel of land and fails to reserve an easement in himself for ingress to and egress from the land he retains, the law implies the reservation of an easement in the landowner. However, under Georgia law, a landowner who fails to reserve an easement for ingress and egress to his remaining land will not be rewarded for his negligence.
Easements By Compulsory Purchase and Sale
In instances where the owners of adjoining lands are involved in a boundary line dispute or in some other type of easement dispute, Georgia courts may order the compulsory purchase and sale of the land over which the easement is claimed. The amount of compensation to be paid to the landowner by the claimant is determined by a jury.
Once an easement by compulsory purchase and sale has been awarded, the easement holder is responsible for keeping it open and maintaining the easement in a good state of repair. If the easement holder fails to keep the easement open and in a state of good repair for a year, he will be deemed to have abandoned the easement and title will revert back to the original landowner or his successors in title.
Easement Issues and Boundary Disputes
Easement disputes may arise over the misuse of an easement or the location and/or dimensions of an easement. Moreover, an easement dispute may revolve around the grantor's interference with easement holder's use of the easement. Another common easement issue involves boundary line disputes and encroaching improvements.
Help from a Real Estate Attorney in Georgia
If you are involved in an easement dispute, you should consult with an experienced real estate attorney. A qualified real estate attorney will review the facts of our case and, if necessary, order a survey and title search, in order to ascertain your legal position and recommend an appropriate course of action.