An affirmative easement gives a person or business the right to use the land of another for a specific purpose. Most easements are affirmative. However, some easements are negative. Negative easements prohibit the landowner from using his property in a particular manner. An example of a negative easement is the prohibition against building a structure that is taller than one story.
Easements in Kansas
Easements are divided into two categories based on the benefit they bestow.
Appurtenant – An easement appurtenant requires the existence of a dominant
estate and a 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 run with the
land. This means that they continue
regardless of who owns the dominant and servient estates.
Easements In Gross – Easements in gross benefit a specific individual or company. An easement in gross may not be sold or assigned. Furthermore, easements in gross cannot be inherited; when the holder of an easement in gross dies, the easement terminates.
Under Kansas law, easements may be created in several ways:
- By Prescription – An easement by prescription may be proven by demonstrating that the land over which the easement is claimed has been used openly, notoriously, and exclusively either adversely to the true owner or under a belief of ownership for at least fifteen years.
- By Necessity – An easement by necessity arises by implied reservation or implied grant when a conveyance leaves either the parcel granted or the parcel retained landlocked. In such instances, an implication arises that the parties did not intend to leave the landlocked parcel without a means of ingress or egress.
- By Implication – Easements by implication arises in instances where a landowner uses one portion of his land to benefit another portion of this land (known as a quasi-easement) and later conveys that portion of his land that benefits from the quasi-easement to another. At the time of the conveyance, the quasi-easement must be of an apparent, continuous, and necessary character.
Types of Easement Disputes
Easement disputes can be costly and time consuming. The most common easement disputes involve:
- Abandonment and non-use; and
Misuse, interference, and abandonment and non-use disputes arise between the easement holder and the landowner. Encroachment disputes arise between adjoining landowners.
Help from a Real Estate Attorney in KS
A qualified real estate attorney can assist landowners in resolving easement issues by reviewing title searches, surveys, and other relevant documents to determine the true boundary lines of their property as well as the location of any improvements, easements, and encroachments.