There are two kinds of easements: 1) affirmative and 2) negative. Affirmative easements give a person or entity the right to use the property of another for a specific purpose. Examples of affirmative easements are:
- Right-of-way Easements;
- Driveway Easements; and
- Beach Access Easements.
A negative easement prohibits the property owner from using his land in a particular manner. Negative easements are far less common than affirmative easements. In modern residential real estate practice Covenants, Conditions, and Restrictions (CC&R's) typically govern the issues which previously were set forth in negative easements. An example of a negative easement is the prohibition against placing an above-ground pool on a property.
Easements in Rhode Island
Easements are divided into two classifications depending on the benefit they bestow.
- Easements Appurtenant – An easement appurtenant benefits an adjoining parcel of land regardless of its ownership. Easements appurtenant are characterized by the existence of a dominant estate and a servient estate. The land which benefits from the easement is referred to as the dominant estate. The land which is burdened by the easement is known as the servient estate.
- Easements in Gross – An easement in gross benefits a particular individual and is considered a personal right that cannot be sold, assigned or inherited. An easement in gross may also be granted for the benefit of a specific company or business entity.
Express Easements – An express easement is established by the execution of a written instrument such as a deed or a contract. A well-drafted easement agreement sets forth the location, dimensions, and permissible uses of the easement. Moreover, an easement agreement should include provisions which address liability, payment of property taxes and insurance, liability and indemnification, termination, and abandonment.
Prescriptive Easements – To establish an easement by prescription, a claimant must show that his use of the land over which he claims the easement has been actual, open, notorious, hostile and continuous under claim of right for a period of ten years.
Easements By Necessity – To establish an easement by necessity, a claimant must show that the easement is reasonably necessary for the convenient and comfortable enjoyment of the property as of the time of severance. In deciding whether to grant an easement by necessity, Rhode Island courts will consider whether an alternative to the easement could be had without unreasonable expense or trouble.
Easements By Implication – Whether an easement by implication exists depends on the intention of the parties at the time of the severance of the unity of title and is predicated on the theory that when a person conveys a parcel of land, he intends to convey or retain whatever is necessary for the use and enjoyment of the land conveyed or the land retained. The test of necessity is whether the easement is reasonably necessary to the use and enjoyment of the property as it existed at the time unity of title was severed.
Easements By Estoppel – To establish an easement by estoppel a claimant must show that:
- An affirmative representation or equivalent conduct on the part of the person against whom the easement is claimed which was made with the intent to induce the person to whom such representation is made to act or fail to act in reliance thereon; and
- Such representation or conduct in fact did induce the party claiming the easement to act or fail to act to his detriment.
Easement Property Boundary Issues
Easement issues arise for a variety of reasons and can be very time-consuming and costly to resolve. Easement disputes frequently involve questions of:
- Abandonment; and
Help from a Real Estate Attorney in RI
Resolving easement issues can be very complicated. Therefore, it's best to hire an experienced real estate attorney who can can explain how Rhode Island law affects your case and recommend the best legal strategy to protect your interests.