An easement is a limited right of use over the land of another. Easements may be either affirmative or negative, appurtenant or in gross, and express or implied.
Easements in WI
Affirmative Easements vs. Negative Easements
Affirmative easements give the easement holder the right to use the grantor's land for a designated purpose. Examples of affirmative easements are:
- Utility Easements;
- Driveway Easements;
- Ingress/Egress Easements; and
- Lake Access Easements.
Negative easements prohibit the owner of land from using it in a certain manner. Negative easements are not as common as affirmative easements. Examples of negative easements include:
- Conservation Easements;
- Historic Preservation Easements; and
- Solar Easements.
Appurtenant Easements vs. Easements In Gross
An easement appurtenant usually benefits an adjoining parcel of land, but may benefit a noncontiguous parcel of land as well. The essence of an easement appurtenant is the existence of a dominant estate and a servient estate. The dominant estate enjoys the privileges granted by the easement while the servient estate is burdened by the easement. Easements appurtenant generally run with the land. This means that if the dominant estate is conveyed, the easement continues to exist.
Unlike easements appurtenant, easements in gross are not tied to ownership or occupancy of a parcel of land. An easement in gross is personal to the holder and gives him the right to use the land of the grantor for a specific purpose. Easements in gross cannot be sold or inherited.
Express Easements vs. Implied Easements
An express easement may be created by deed or other written instrument which sets forth and defines the relative rights of the grantor and the grantee. A deed creating an express easement should identify the location, dimensions, and permitted use of the easement.
Under Wisconsin law, implied easements may only be created where the necessity for the easement is so clear and absolute that without the easement the grantee would be unable to enjoy the use of his property in the manner contemplated at the time of conveyance.
Easements by necessity are a kind of implied easement. An easement by necessity is proven by showing:
- Common ownership of two parcels of land prior to severance of the landlocked parcel; and
- That the owner of the landlocked parcel has no way of access to a public roadway from his property.
Easements By Prescription
Under Wisconsin law, in order to establish an easement by prescription, a claimant must show:
- Adverse use hostile and inconsistent with the rights of the true owner;
- Visible, open, and notorious use;
- Use under an open claim of right; and
- Continued and uninterrupted use for a period of twenty years.
If the use is with the true owner's permission, a prescriptive easement will not be found. On the other hand, there is a presumption that the use is adverse if it has continued, unexplained, for twenty years or more.
Easement Problems and Disputes
Easement disputes sometimes arise because a landowner erects improvements which encroach on the adjoining property. Easements disputes may also arise because the grantor and the easement holder disagree on the location, size, or permitted use of the easement. Other issues which may result in an easement dispute include questions of:
- Liability; and
- Responsibility for payment of property taxes and insurance.
Help from a Real Estate Lawyer in Wisconsin
If you are involved in an easement dispute, you should consult with a real estate attorney who is well-versed in Wisconsin easement law. An experienced real estate attorney will review the facts of your case, along with all relevant documentation, and advise you of the best course of action.