New Mexico Easement Law

An easement gives a person a right of use over the property of another. Easements are generally granted for a very specific purpose and the easement holder may not expand or change how he uses the easement without the consent of the landowner.

Easements are divided into two categories depending on the benefit bestowed by the easement.

1. Easements Appurtenant – An easement appurtenant benefits an adjoining parcel of land and is said to run with the land. This means that regardless of who owns the land, the easement will continue to exist. In order to create an easement appurtenant, there must be a dominant estate and a servient estate. The dominant estate is the land which benefits from the easement. The land that's burdened by the easement is known as the servient estate.
2. Easements In Gross – An easement that benefits a specific individual or entity is known as an easement in gross. Easements in gross cannot be sold, assigned, or inherited, unless the agreement between the parties specifically states otherwise.

Types of Easements in NM

Express Easements - New Mexico courts look favorably upon express easements. Express easements are created by deed, contract, or other written instrument. A well-written express easement identifies the location and dimensions of the easement, the duration of the easement, the scope or permissible uses of the easement, and the parties who may use the easement.

Easements By Prescription – An easement by prescription may be established upon a showing of open, uninterrupted, peaceable, notorious, adverse use, under claim of right, that has continued for a period of ten years.

Easements By Necessity – An easement by necessity arises in relation to an implied grant or reservation of right of ingress to and egress from to a landlocked parcel. Under New Mexico law, there is no requirement that the dominant and servient estates be created out of one undivided parcel of land. Moreover, New Mexico courts look to the intent of the parties at the time of the conveyance which created the landlocked property.

Easements By Implication – To establish an easement by implication, a claimant must prove three elements:

1. Separation of the unity of title;
2. That the history of the claimed easement has run for so long as to demonstrate its permanence; and
3. That the easement is reasonably necessary for the full enjoyment of the property it benefits.

Easement Boundary Disputes

Easement disputes often arise in relation to the erection of improvements such as fences, retaining walls, driveways, and storage sheds. The best way to avoid these types of disputes is to have a survey and title search completed before erecting improvements.

Other easement issues may arise as a result of poorly drafted easement agreements or as a result of confusion over the location, size, or purpose of an easement. Easement issues frequently involve allegations of:

• Abandonment;
• Interference;
• Misuse;
• Termination; and
• Trespass.

Help from a Real Estate Attorney in New Mexico

Real estate attorneys assist clients with matters relating to easements. Among the services a real estate attorney may provide is the negotiation and drafting of easement agreements. Additionally, a real estate attorney may represent clients who are involved in easement disputes and easement litigation.