Vermont Easement Law

An easement is a limited right of use over the property of another and may be created by grant or reservation. Easements are either express or implied, affirmative or negative, and appurtenant or in gross.

Easements in VT

Express Easements

An express easement is created by deed, contract or other written instrument which describes the location, dimensions, and scope of the interest being conveyed. In instances where an instrument purporting to grant or reserve an express easement is vague and ambiguous, Vermont courts will look to the circumstances and facts surrounding the transaction to ascertain the intent of the parties.

Implied Easements

Implied easements are grounded in the theory that when a parcel of land is conveyed, everything apparent and continuous that is essential to the beneficial use and enjoyment of the property, absent language evidencing a different intent on the part of the grantor, passes with the parcel being conveyed.

A showing of necessity alone is not enough to establish an implied easement, however. A claimant must also prove that it was the intention of the parties to establish the easement. Vermont courts will look to the deed and other instruments and the circumstances surrounding their execution as well as the physical condition of the premises and the knowledge each party had, whether actual or constructive.

Implied easements may arise by grant or reservation. A party claiming an implied easement by grant need only demonstrate reasonable necessity. On the other hand, a party claiming an implied easement by reservation must demonstrate strict necessity.

Affirmative Easements

An affirmative easement gives the grantee the right to use the property of the grantor for a designated purpose. Examples of affirmative easements are:

• Utility Easements;
• Ingress/Egress Easements; and
• Driveway Easements.

Negative Easements

A negative easement prohibits a landowner from using his property in a specified manner. Negative easements are not used as frequently today as they were in the past. Today, Covenants, Conditions, and Restrictions (CC&R's) are often used in place of negative easements. Examples of negative easements are:

• Conservation Easements;
• Historic Preservation Easements; and
• Light and Air Easements.

Easements Appurtenant

An easement appurtenant benefits an adjoining parcel of land. Easements appurtenant are characterized by the existence of a dominant estate (the land which benefits from the easement) and a servient estate (the land which is burdened by the easement). Easements appurtenant are favored by the law because they run with the land. This means that the easement continues to exist when the property which benefits from it is sold or inherited.

Easements In Gross

Easements in gross benefit a specific individual or business entity and are considered personal rights. This means that unless the parties specifically agree otherwise, an easement in gross cannot be sold, assigned, or inherited.

Easement Problems and Disputes

One of the most common easement issues involves encroaching improvements. When a landowner erects improvements which encroach on adjoining land, he may be ordered by a judge to remove them or to pay the adjoining landowner for an easement.

Easement disputes may also arise as a result of poorly written easement agreements or because one or both parties do not understand their rights and obligations under an easement agreement. Easement disputes frequently involve allegations of:

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

Help from a Real Estate Attorney in Vermont

Before entering into an easement agreement, it's important to have the agreement reviewed by an attorney who can explain it to you so that you understand your rights and obligations thereunder. Additionally, the attorney will make sure that the agreement does not contain any provisions which are illegal or which could potentially work against you in the event a future dispute.