An easement is an interest in the land in and over which it is enjoyed. An easement differs from a license in that a license bestows no legal interest in the land, but is rather a personal privilege to do a particular act on the land.
Easement may be granted which benefit a particular parcel of land or which benefit a particular individual. When an easement benefits a specific parcel of land it is referred to as an easement appurtenant. Easements appurtenant are characterized by the existence of a dominant estate and a servient estate. The dominant estate is the property which benefits from the easement. The servient estate is the property which is burdened by the easement.
Easements that benefit a specific individual, on the other hand, are referred to as easement in gross. An easement in gross generally terminates upon the death of the easement holder. Moreover, unless the parties expressly agree otherwise, an easement in gross cannot be sold or assigned.
Express Easements – An express easement may be established by deed, grant, or other written instrument. An express easement should specify the location of the easement, its dimensions, the purpose or purposes for which the easement may be used, and who may use it. Where an express easement is vague or ambiguous, courts will look to the circumstances surrounding the transaction in order to ascertain the intention of the parties.
Easement By Necessity – An easement by necessity will be found upon a showing of unity of ownership and strict necessity.
Easements By Implication – To establish an easement by implication, a claimant must prove three elements:
Easements By Prescription – A claimant may establish an easement by prescription by proving that he has used the property over which he claims an easement openly, notoriously, exclusively, adversely, uninterruptedly, and continuously for a period of five years.
Easement issues may arise for a variety of reasons. Poorly drafted easement agreements may give rise to confusion and disputes over the location and dimensions of the easement as well as the intended purpose of the easement and who may use the easement.
Other easement issues may involve allegations of:
The best way to prevent easement disputes is to hire a qualified real estate attorney to draft and record the easement. If you are currently involved in an easement dispute, do not resort to self-help. Instead, seek the advise of a qualified real estate attorney who will review the facts of your case and advise you as to the best strategy for protecting your interests.