Indiana Easement Law

An easement is a right of use over the land of another for a specific purpose. An easement gives the easement holder a non-possessory interest in the property of the landowner and prohibits the landowner from interfering with the easement holder's use of the easement.

Types of Easements in Indiana

Indiana law recognizes the following types of easements:

• Express Easements;
• Easements by Implication;
• Easements by Necessity; and
• Easements by Prescription.

Express Easements – Express easements are created by deed, contract, or other written instrument and are favored under the law. An express easement should specifically identify the location and dimensions of the easement as well as the permissible or intended use of the easement. Where an express easement is ambiguous, courts will ascertain the intention of the parties to establish the easement by examining the circumstances surrounding the creation of the deed, contract, or instrument.

Easements By Implication – There are two types of easements by implication.

Implied Easement of Necessity - To establish an implied easement of necessity, a claimant must prove the following four elements:

a) That there was common ownership of the dominant and servient estates at the time they were severed;
b) That the common owner's use of one part of his land to benefit the other part was apparent and continuous;
c) That the land was transferred; and
d) That at the time of the transfer, it was necessary to continue the preexisting use for the benefit of the dominant tenement.

Implied Easement By Prior Use – To establish an implied easement by prior use, a claimant must show that:

a) The dominant and servient estates where under common ownership and that during the period of common ownership, the owner imposed an apparently permanent and obvious servitude (use) on one part of his land for the benefit of another part of his land;
b) The servitude was in use at the time the dominant estate (the property that benefits from the servitude or easement) was severed from the servient estate (the property that is burdened by the servitude or easement); and
c) The servitude is reasonably necessary for the enjoyment of the dominate estate.

Easements By Necessity – An easement by necessity may be established by proving that there has been a severance of the unity of title such that one portion of the land is left landlocked and without access to a road and by proving the necessity of the easement.

Easements By Prescription - To establish as easement by prescription, a claimant must prove the following four elements.

a) That he exercised a degree of use and control over the parcel of land that is normal and customary considering the characteristics of that land;
b) That he had the requisite intent to claim full ownership of the land over which he claims the easement superior to all others, including the true owner of the land;
c) That his actions with respect to the subject property were sufficient to give the true owner actual or constructive notice of his intent and exclusive control; and
d) That he has satisfied each of the first three elements continuously for a period of twenty years or more.

Easement and Boundary Disputes

A common easement issue involves encroachment of improvements. If an landowner erects improvements that encroach on adjoining property, he may be required to pay the owner of the adjoining property for an easement or he may be ordered to remove the improvements.

Other common easement issues include allegations of:

• Abandonment and nonuse;
• Misuse; and
• Interference.

Help from a Real Estate Attorney in Indiana

An experienced real estate attorney can assist a landowner in avoiding easement disputes by reviewing surveys, title searches, and other relevant documents before the landowner erects improvements. If a dispute has already arise, a real estate attorney can assist a landowner in understanding Indiana easement law and how it impacts his legal claim or defense.