An easement is a non-possessory right of use over the land
of another. Generally, an easement is
granted for a specific purpose and the easement holder may not expand the use
of the easement without the consent of the landowner.
There are many kinds of easements and each falls into one of
two categories:
- Easements
Appurtenant – An easement appurtenant benefits adjoining property. Easements appurtenant are characterized
by the existence of a dominant estate and and servient estate. The dominant estate is the property
which benefits from the easement.
The servient estate is the property which is burdened by the
easement. Easements appurtenant can
be sold, assigned, and inherited.
- Easements
In Gross – An easement in gross benefits a particular individual or
business entity. When the easement holder dies, the easement
terminates. Moreover, easements in
gross cannot be sold or assigned.
Establishing Easements in Iowa
Iowa law recognizes several methods of establishing
easements:
- Express
Easements – Express easements are created by deed, contract, or other
written instrument. A properly
drafted express easement sets forth the location and dimensions of the
easement along with the scope of the easement.
- Easements
by Prescription - To prove the
existence of an easement by prescription, a claimant must show that he has
used the land over which he claims the easement under claim of right or
color of title, openly, notoriously, continuously, and hostilely for a
period of ten years or more.
- Easements
by Necessity – To establish an easement by necessity, a claimant must
show that:
- There was unity of title between the dominant
and servient estates at some point prior to severance;
- Unity of title was severed; and
- There is a necessity for the easement.
Easements by necessity are most commonly found in relation to the
conveyance of a landlocked parcel of land.
- Easements
by Implication – An easement by implication may be claimed by anyone
in the chain of title, whether grantor or grantee. To prove the existence of an easement by
implication, a claimant must prove the following four elements:
- A severance of the unity of title;
- That before the severance occurred, the use
giving rise to the easement had continued for so long and was so obvious that
is was manifest it was intended to be permanent;
- That the easement is continuous rather than
temporary; and
- That the easement is essential to the beneficial
use of the dominant or servient tenement.
The primary difference between an
easement by implication and an easement by necessity is that proving an
easement by implication requires proof that the parties intended to create an
easement although they did not express that intent. Establishing an easement by necessity
requires no proof of the intent of the parties.
Easement and Boundary Disputes
Easement issues frequently arise in relation to the erection
of property improvements. When
improvements, such as fences, retaining walls, sheds, and driveways, for
example, encroach on adjoining property, the owner of the improvements may be
required to remove them or to pay the adjoining landowner for an easement.
Easement issues may also involve allegations of misuse of or
interference with the easement. Another
common easement issue revolves around abandonment and non-use of the easement.
Help from a Real Estate Attorney for Easement Issues in Iowa
When easement issues arise, it's advisable to retain an
experienced real estate attorney. A real
estate attorney will review the surveys, title search, and other relevant
documents in order to ascertain the boundary lines of the property and the
location of any improvements and easements thereon. A real estate attorney will explain how Iowa
easement law applies to the facts of the case and will formulate a strategy to
prosecute or defend the case.