An easement is a right of use over the land of another for a specific purpose. An easement bestows a non-possessory interest on the easement holder in the property of the landowner. Most easements are permanent, unless the contract or deed between the parties states otherwise.
One of the most common types of easement is the right-of-way easement. Other types of easements include:
- Drainage Easements;
- Solar Easements;
- Light and Air Easements;
- Driveway Easements;
- Utility Easements; and
- Conservation Easements.
Affirmative Easements vs. Negative Easements
Most easements are affirmative. Affirmative easements give the easement holder a right to use the landowner's property in a certain manner. Some easements, however, are negative. A negative easement prohibits the landowner from using his property in a certain way. An example of a negative easement is the prohibition against building a fence that blocks the view of a lake.
Creation of Easements in MO
Easements can be divided into two categories: 1) those that benefit a specific parcel of land, known as easements appurtenant and 2) those that benefit a specific individual or business entity, known as easements in gross.
Both easements appurtenant and easements in gross can be established by deed or contract. An easement that is created by executing a written instrument is known as an express easement. Express easements are favored by the law and generally set forth the location, dimensions, and purpose of the easement.
Easements may be created in several other ways as well.
Easements By Prescription – Under Missouri law, an easement by prescription may be proven by demonstrating that the claimant's use of the property has been continuous, uninterrupted, visible, and adverse and that such use has continued for a period of ten years or more. If the claimant's use of the property is with the consent or permission of the landowner, an easement by prescription will not be found.
Visible Easements – A visible easement may be established by proving four elements:
- There must have been a unity of title followed by a separation of the subject property into a dominant tenement and a servient tenement;
- The purported easement must have been constructed, altered, or arranged by the common owner in such a way as to constitute an open, obvious, and visible benefit or advantage to the claimant's property and a burden to the servient property;
- The purported easement must have been used long enough before the severance of title and in such a manner as to show that it was intended to be permanent; and
- The purported easement must be reasonably necessary to the full beneficial use and enjoyment of the dominant estate.
Easements By Necessity – An easement by necessity will be found upon a showing that at one time their was unity of title between the dominant and servient estates and that the easement provides the only means of ingress to and egress from the dominant estate. Under Missouri law an easement by necessity can be for the purpose of ingress and egress only.
Easement Property Boundary Disputes
Easement disputes frequently arise between adjoining landowners over encroaching improvements. Oftentimes, a landowner may be mistaken about the location of the boundary lines of his property and, as a result, will erect improvements that encroach on the adjoining property. In such cases, he may be forced to remove the improvements or to pay the adjoining property owner for an easement.
Other easement disputes may arise between a landowner and the person to who he granted an easement. These types of disputes typically involve allegations of:
- Interference; and
Help from a Real Estate Attorney in Missouri for Easements
A real estate attorney represents clients who are involved in easement disputes. Among the services a real estate attorney offers is document review and drafting, settlement negotiations, and representation in easement lawsuits.