Maine Easement Law

An easement is a non-possessory right of use over the land of another. Easements are typically divided into two categories based on the benefit they bestow.

• Easements in Gross – An easement in gross benefits a specific individual. Unless clearly specified by the parties, an easement in gross cannot be sold, assigned, or inherited.
• Easements Appurtenant – An easement appurtenant benefits a specific parcel of land and passes with that land. The distinguishing characteristic of an easement appurtenant is the presence of a dominant estate and a servient estate. The property which benefits from the easement is known as the dominant estate; while the property which is burdened by the easement is known as the servient estate.

Creating and Establishing Easements in Maine

In Maine, easements may be established in several ways.

Easements By Necessity

To establish an easement by necessity, a claimant must prove three elements:

1. The conveyance of a lot out of a larger, divided parcel;
2. A lack, for all practical purposes, of access to the conveyed parcel; and
3. The availability of relief in the form of an easement across the land retained by the grantor.

To prove necessity, a claimant need not show that their land is completely or absolutely inaccessible without the easement. When a means of accessing the property exists but the expense that will be incurred in utilizing it is cost prohibitive because it exceeds the value of the property itself, an easement by necessity across the property retained may be granted.

Easements By Prescription

An easement by prescription may be established by demonstrating continuous use for at least twenty years under claim of right adverse to the owner, with his knowledge or acquiescence or by a use so open, notorious, visible, and uninterrupted as to impute knowledge or acquiescence to the owner.

Implied Easements

An implied easement may be found if:

1. There was single or common ownership between the dominant and servient estates and during the period of common ownership the landowner used the servient estate to benefit the dominant estate in a manner that was apparent and observable (known as a quasi-easement) and the retention of which would obviously benefit the servient estate after conveyance; and
2. The common owner who severed the unity of title manifested the intent that the quasi-easement would become a true easement upon conveyance.

Express Easements

An express easement is created by deed or contract which sets forth the location, dimensions, and purpose of the easement. If an express easement is in anyway ambiguous, courts will seek to ascertain the intent of the parties by examining the circumstances surrounding the execution of the deed or contract.

Easement Legal Issues

Easement disputes often involve questions of misuse, interference, and abandonment. These types of disputes arise between the easement holder and the landowner. However, easement disputes may also arise between adjoining land owners. Disputes between adjoining landowners typically involve encroaching improvements.

Help from a Real Estate Attorney in Maine

The best resource in avoiding easement issues is to hire a qualified real estate attorney before entering into an agreement to grant an easement. If you are seeking an easement or plan on granting an easement, you need an experienced real estate attorney who will review the survey, title search and other relevant documents and who will draft the appropriate contract and/or deed to effectuate the conveyance of the easement.

If you are already involved in an easement dispute, rather than resorting to self-help or attempting to resolve the dispute yourself, you should hire an experienced real estate attorney. A real estate attorney will advise you of your legal options and effectively protect your interests.