Easements are divided into two classifications: 1) affirmative easements and 2) negative easements. An affirmative easement gives a grantee the right to use the grantor's property for a specific purpose. It gives the easement holder a non-possessory interest in the grantor's land.
A negative easement prohibits a landowner from using his property in a certain manner. An example of a negative easement is a prohibition against building a fence that obstructs a mountain view. Negative easements are not as common as affirmative easements. In modern residential real estate practice, Covenants, Conditions, and Restrictions (CC&R's) serve the same function as negative easements.
How Easements Are Created in NJ
Easements are either appurtenant or in gross. An easement appurtenant benefits an adjoining parcel of land regardless of who owns that land. Easements appurtenant are characterized by the presence of a dominant estate and a servient estate. The land that benefits from the easement is known as the dominant estate; the land that is burdened by the easement is referred to the servient estate.
Easements in gross benefit a particular person or company. Unless the parties to the easement agreement specifically state otherwise, an easement in gross cannot be sold, assigned, or inherited.
Express Easements – An express easement is created by signing a written document such as a deed or a contract which sets forth the location and dimensions of the easement as well as how the easement may be used and by whom it may be used. An express easement might also contain the following provisions relating to:
- Payment of Property Taxes;
- Payment of Insurance
- Default; and
- Liability and Indemnification.
By Prescription – To prove the existence of an easement by
prescription, a claimant must show that his use of the land over which he
claims the easement has been adverse or hostile, exclusive, visible,
uninterrupted, and continuous for a period of twenty years. 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.
Quasi-Easement By Implication – A quasi-easement by implication will be found if the claimant can prove that:
- Title to a once commonly owned property has been severed;
- Part of the land had been used to benefit another part of the land prior to the severance of title;
- The use of the servient estate to benefit the dominant estate was apparent, continuous, permanent, and reasonably necessary for the enjoyment of the dominant estate; and
- Each element was in existence at the time unity of title was severed.
Easements By Necessity – An easement by necessity is a type of implied easement and will be found in instances where a landowner conveys a parcel of land that is completely landlocked by other property owned by the same landowner. An easement by necessity will be found only in relation to the boundary conditions existing at the time of the original subdivision which resulted in the severance of the unity of title.
Easement Boundary Disputes
Easement issues may arise for a variety of reasons. Some of the most common easement disputes involve allegations of:
- Trespass; and
Help from a Real Estate Attorney in New Jersey
If you are involved in an easement dispute, a real estate attorney will advise you of how New Jersey easement law impacts your case and will offer a legal opinion as to the viability of your case. A real estate attorney may also handle settlement negotiations on your behalf and represent you in court if the case goes to trial.