An easement gives a party the right to use the property of another for a specific purpose. An easement gives the easement holder a non-possessory interest in the landowner's property.
Easements are divided into two categories based upon the benefit they bestow.
Express Easements – Express easements are created by deed, contract, or other written agreement. A well-drafted express easement will identify the location and dimensions of the easement and will set forth the permissible use of the easement.
Easements By Prescription – To establish an easement by prescription, a claimant must show that his use of the easement was hostile or adverse, actual, open, exclusive, and continuous for a period of fifteen years or more. If the use is with the permission of the true owner, an easement by prescription will not be found.
Easements By Necessity – Easements by necessity are a type of implied easement. To establish an easement by necessity, a claimant must prove four elements:
Easements By Implication – An easement by implication requires proof of the following three elements:
The necessity requirement is determined as of the date of the severance of the unity title.
Easement issues may arise when property improvements encroach on adjoining land. Easement issues may also revolve around disputes over the size and location of the easement. Other easement disputes involve allegations of:
A real estate attorney may negotiate and draft easement contracts and deeds. Additionally, a real estate attorney may represent clients involved in easement litigation in a range of matters from settlement negotiations, to the drafting of pleadings and discovery, to representation at trial.
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