North Dakota Easement Law

An easement is a non-possessory right of use over the land of another.   An easement may be for the benefit of a particular parcel of land or for the benefit of a particular individual.   Easements which benefit a specific parcel of land are known as easements appurtenant; easements which benefit a specific person are known as easements in gross.

An easement is usually granted for a specific or limited purpose.   Examples of easements are:

  • Utility Easements;
  • Drainage Easements;
  • Right-of-Way Easements;
  • Solar Easements;
  • Sidewalk Easements;
  • Light and Air Easements;
  • Conservation Easements; and
  • Historic Preservation Easements.

Creation of Easements in North Dakota

Express Easements – An express easement is created by executing a contract, deed, or other written instrument which sets forth the nature and extent of the easement.   If an express easement is vague and ambiguous, courts will look to the circumstances surrounding the transaction to ascertain the intent of the parties.

Prescriptive Easements – A prescriptive easement may be established by proving that the use of the land over which the easement is claimed has been adverse, continuous and uninterrupted for a period of twenty years.

Easements By Necessity – An easement by necessity arises where there is a conveyance of land that leaves the granted parcel or the retained parcel landlocked.   A finding of the existence of an easement by necessity depends on the intent of the parties and that intent will be inferred from the facts and circumstances surrounding the transaction.

Implied Easement By Preexisting Use – Like easements by necessity, implied easement by preexisting use depend on the intent of the parties as ascertained from the facts and circumstances surrounding the transaction.   To establish an implied easement by preexisting use, a claimant must prove three elements:

  1. Unity of title between the dominant and servient estate followed by a subsequent severance; (The dominant estate is the land which benefits from the easement and the servient estate is the land which is burdened by the estate.);
  2. Apparent, permanent, and continuous use of the easement prior to severance; and
  3. That the easement is important or necessary to the enjoyment of the dominant estate.

Easement Issues and Boundary Disputes

One of the most common causes of easement disputes is encroaching improvements.   If a landowner erects improvements which encroach on adjoining property, he may be ordered by a judge to remove the improvements or to pay the adjoining property owner for an easement over his property.

Easement disputes may arise for a number of other reasons, as well, including:

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

Help from a Real Estate Attorney in ND

If you are involved in a legal dispute, it's best to hire an experienced real estate attorney who can assist you in finding a resolution.   A real estate attorney can advise you on how North Dakota easement law impacts your case and will formulate a legal strategy to help you achieve the best result under the circumstances.

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