An easement is a non-possessory, limited right of use over the land of another. Once an easement is granted, neither the grantor nor the grantee can change its location, size, or scope without the consent of the other party.
Creating Easements in South Carolina
Easements may be express or implied.
- Express Easements - Express easements may be created by deed, contract, or other written instrument. Express easements must describe the scope of the interest being convey, along with the location and dimensions of the easement. If an express easement is vague or ambiguous, South Carolina courts will seek to ascertain the intentions of the parties by examining the circumstances and facts surrounding the transaction.
- Implied Easements – An implied easement will be found where the facts and circumstances surrounding the transaction, the property, the parties, or some other characteristic demonstrate that the objective intent of the parties was to create an easement.
There are two types of implied easements:
Implied Easements by Necessity
To establish an implied easement by necessity, a claimant must prove three elements:
Unity of title;
2. Severance of title; and
3. Necessity of the easement.
Implied Easements By Preexisting Use
An implied easement by preexisting use will be found where:
The dominant estate (the land which benefits
from the easement) and the servient estate (the land which is burdened by the
easement) originated from a common grantor;
2. The use was in existence at the time the common owner severed the dominant and servient estates; and
3. The use was apparent, continuous, and necessary for the use and enjoyment of the dominant estate.
Easements By Prescription
To establish an easement by prescription, a claimant must prove:
Continued use for twenty years;
2. The identity of the easement; and
3. Use which is adverse or under claim of right.
Under South Carolina law, if the claimant successfully proves that his use of the land over which he claims the easement was open, notorious, continuous and uninterrupted, his use of the easement will be presumed to have been adverse.
Easement and Property Boundary Disputes
Easement disputes frequently arise as a result of poorly drafted easement agreements. Easement issues may also arise over the misuse of the easement by the easement holder or the interference by the landowner with the easement holder's rightful use of the easement. Other easement disputes may revolve around:
- Boundary lines and encroachments;
- Abandonment; and
Help from a Real Estate Attorney in SC
If you are involved in an easement dispute, you should hire an experienced real estate attorney rather than attempt to resolve the dispute yourself. An real estate attorney will review your deed, survey, and other relevant documents to determine whether you have a viable claim or defense and will advise you of your best course of action.