An easement is a limited right of use over the property of another. Common easements include:
- Solar Easements;
- Utility Easements;
- Right-of-way Easements;
- Driveway Easements;
- Sidewalk Easements;
- Sanitary Sewer Easements;
- Conservation Easements; and
- Historic Preservation Easements.
Easements typically fall into two categories:
- Easements Appurtenant - An easement appurtenant benefits adjoining property regardless of ownership. To create an easement appurtenant, there must be a dominant estate and a servient estate. The property that benefits from the easement is known as the dominant estate. The property that is burdened by the easement is known as the servient estate.
- Easements in Gross - An easement in gross gives a specific individual or business entity a personal right of use over the land of the grantor. Unless the easement agreement states otherwise, easements in gross cannot be inherited, sold, or assigned.
Forming Easements in Ohio
Under Ohio law, easements may be created in four ways: by grant, implication, prescription, or estoppel.
Grant – Easements by grant are known as express easements and are
established by the execution of a deed, contract, or other written
instrument. Ohio law does not
require the use of any special language in a document purporting to create
an express easement. However, the
document must be signed by the grantor and properly witnessed by two
disinterested parties and recorded in the real estate records of the
county in which the property is located.
By Implication – A finding of an implied easement depends on the intent of the parties and the circumstances surrounding the transaction. An easement by implication was arise from:
- Existing use at the time of severance of the unity of title;
- A conveyance describing the property as being bounded by a street or way;
- A conveyance that makes reference to a plat or map; or
By Prescription – To establish an easement by prescription, a claimant must show that his use of the property over which he claims the easement was hostile or adverse, uninterrupted, continuous, and under claim of right with the knowledge and acquiescence of the true owner for a period of twenty-one years.
By Estoppel – Easements by estoppel arise when a landowner represents that an easement exists when in does not or a landowner permits the erection of improvements on his property by a person who believes that he holds an easement over the landowner's property. One claiming an easement by estoppel must prove:
- Misrepresentation or fraudulent failure to speak; and
- Reasonable detrimental reliance.
Boundary and Easement Disputes
Easement disputes may arise because one landowner is unaware of where his land stops and the adjoining land begins or because he mistakenly believes he has an easement over adjoining property.
Easement issues also commonly involve:
- Trespass; and
Help from a Real Estate Lawyer in Ohio
Because easement disputes can be very costly and time-consuming to resolve, before entering into an easement agreement, it's best to hire an experienced real estate attorney who can explain the agreement to you and ensure that you understand your rights and obligations thereunder. A real estate attorney can also draft and record the easement agreement.
If you are already involved in an easement dispute, a real estate attorney will examine your case and recommend the best course of action. Additionally, a real estate attorney can represent you in settlement negotiations and, if necessary, at trial.