Nebraska Easement Law

An easement is the privilege of using the land of another for a specific purpose. Among the most common types of easements are:

• Ingress & Egress Easements, also known as right-of-way easements;
• Drainage Easements;
• Railroad Easements;
• Utility Easements;
• Solar Easements;
• Historic Preservation Easements; and
• Conservation Easements.

An easement may benefit a particular person or a specific parcel of land. An easement that benefits a specific individual is known as an easement in gross. An easement that benefits a specific parcel of land is known as an easement appurtenant.

Affirmative Easements vs. Negative Easements

An affirmative easement is an easement that gives the easement holder the right to use the landowner's property for a designated purpose. An example of an affirmative easement is a right-of-way easement.

A negative easement, also known as a restrictive easement, on the other hand, prohibits a landowner from using his property in a certain manner. An example of a negative easement is the prohibition against destruction of wetlands.

All negative easements must be in writing to be effective. Moreover, if a negative easement is not recorded, the easement will terminate upon the conveyance of the subject property.

Types of Easements in Nebraska

Easements may be express or implied. Express easements are established by the execution of a deed, contract, or other written instrument, such as a plat of survey. An express easement should set forth the location, dimensions, and scope of the easement, as well as who may use the easement and when the easement will terminate.

An implied easement will be inferred from the intent of the parties and the circumstances surrounding the transaction. There are several types of implied easements:

• Easements By Prescription – To establish an easement by prescription, a claimant must prove that his use of the land over which he claims the easement has been open, notorious, exclusive, uninterrupted, adverse, and under claim of right for a period of ten years.
• Easements By Implication From Prior Use – An easement by implication from prior use will only be found if the following three conditions are met:

1. The use giving rise to the easement was in existence at the time of the conveyance which subdivided the property;
2. The use was so long employed and so obvious as to show that it was meant to be permanent; and
3. The easement is necessary for the proper and reasonable enjoyment of the dominant estate.

• Easements By Necessity – Easements by necessity arise when a parcel of land is landlocked. To prove the existence of an easement by necessity, a claimant must show that there was a conveyance of a parcel of land of such a nature and extent that either the part conveyed or the part retained lacks access to a public road and that it was the intent of the grantor to either grant or reserve an easement for ingress and egress.

Easement Boundary Disputes

Easement disputes may arise between adjoining landowners, an easement holder and a landowner, or a landowner and a third party. Typical easement disputes include:

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

Help from a Real Estate Lawyer in NE

A real estate attorney represents clients needing legal advice on matters pertaining to real estate transactions, including easement issues and disputes. A real estate attorney assists clients with easement issues by reviewing title searches, surveys, and other relevant documents and recommending a legal opinion and viable courses of action.