An easement gives the easement holder a non-possessory interest in the grantor's land and allows the easement holder to use the grantor's land for a specific purpose. Once an easement has been granted, the easement holder may not expand the use of the easement and the grantor may not interfere with the easement holder's use of the easement.
Easements can be divided into two categories: 1) easements that benefit the adjoining land, regardless of who owns that land which are known as easements appurtenant and 2) easements that benefit a specific person or entity, known as easements in gross.
Implied Easements – To prove the existence of an implied easement, a claimant must show:
Easements By Necessity
To establish an easement by necessity, a claimant must prove:
Easements by necessity most commonly arise in relation to lands that are landlocked or otherwise inaccessible. In such cases, strict necessity has been defined as absolute necessity. If there is any other means of access, regardless of how inconvenient it may be, the claimant will not satisfy the strict necessity element required to establish an easement by necessity.
Prescriptive Easements – An easement by prescription may be established by a showing of unobstructed, open, peaceable, and continuous use under claim of right for a period of at least fifteen years.
Express Easements – Under Kentucky law, an express easement is created by written agreement of the parties. Whether by deed or contract, an express easement is created only if language of "grant" or "reserve" is included in the document.
One of the most common easement issues involves encroachments. When a property owner erects improvements that encroach on the adjoining land, he may be required to remove them or to pay the adjoining landowner for an easement.
Another common easement issue involves misuse. If an easement holder uses the easement for an unauthorized purpose or attempts to change the location or enlarge the dimensions of the easement, the landowner may have a claim for misuse against the easement holder. Likewise, an easement holder may have a claim against a landowner if the landowner interferes with the easement holder's rightful use of the easement or if he attempts to relocate the easement or to diminish its size.
A real estate attorney may assist in drafting and recording the documents necessary to create an easement. Moreover, a real estate attorney may represent a party who is involved in an easement dispute. A real estate attorney typically advises a litigant on the current state of easement law and recommends an appropriate course of action in light of the law.
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