An easement gives a person a limited right to use the property of another and constitutes a non-possessory interest in that property. Some easements benefit a particular person while others benefit a particular parcel of land. An easement which benefits a specific individual is referred to as an easement in gross. An easement which benefits a particular parcel of land is known as an easement appurtenant.
Easements may be either express or implied. An express easement is created by deed, contract, or other written instrument which sets forth, among other things, the location, dimensions, and permissible uses of the easement.
Implied easements arise based on the intention of the parties as ascertained from the facts and circumstances surrounding the transaction. There are several types of implied easements:
To prove the existence of an easement by necessity, a claimant must show the following three elements:
Unity of title;
2. Conveyance of a portion of the land previously held under common title;
3. A resulting necessity for a right of access to the land which arose at the time unity of title was severed.
Once granted, an easement by necessity continues to exist for as long as the necessity exists. This means that if an alternative means of access to the land becomes available, the easement will terminate.
To establish an easement by implication from preexisting use, a claimant must show that:
There was a conveyance that severed unity of
title between the dominant estate and the servient estate;
2. At the time of the conveyance which severed the unity of title, one part of the property was being used to benefit the other part of the property, thus, creating a quasi-easement; and
3. The use was apparent and continuous and reasonably necessary to the enjoyment of the dominant estate.
To prove an easement by prescription, a claimant must show an open, visible, continuous, and uninterrupted use of the land over which is he claims the easement for a period of fifteen years.
Easement issues frequently arise as a result of poorly drafted easement agreements. If an easement agreement is not well-drafted, the parties may find themselves in disputes over the location, size, term, and permitted use of the easement. Easement issues may also relate to encroachments, interference, trespass, and abandonment.
Your best weapon in an easement dispute is an experienced real estate attorney. A real estate attorney will review the facts of your case and formulate a strategy to help you achieve the best outcome under the circumstances.