An easement is a non-possessory right of use over the land of another. Easements are either affirmative or negative. An affirmative easement grants or reserves a right to use the land of another for a specific purpose. Examples of affirmative easements include:
A negative easement prohibits a landowner from using his property in a particular manner. Examples of negative easements include:
Easements are either express or implied. An express easement may be created by grant or reservation in a deed or contract which sets forth the location and dimensions of the easement, how it may be used, and who may use it.
Implied easements are inferred based on the intention of the parties. Courts will look to the facts and circumstances surrounding the transaction to ascertain the intention of the parties. There are several types of implied easements.
To prove an easement by implication, a claimant must show:
A severance of the unity of title;
2. Such a continuous and obvious use prior to severance of the unity of title as to show such use was meant to be permanent;
3. That the easement is necessary for the beneficial enjoyment of the land granted or the land retained; and
4. The servitude is continuing and self-acting.
To establish an easement by prescription, a claimant must show that his use of the land over which he claims the easement has been open, notorious, adverse, continuous, and uninterrupted for a period of twenty-one years.
An easement by necessity arises if:
There was unity of title between the dominant
tenement (the land that benefits from the easement) and the servient tenement
(the land that is burdened by the easement);
2. Unity of title was severed by a conveyance of either the dominant tenement or the servient tenement; and
3. The easement is necessary for the owner of the dominant tenement to use his land and that necessity existed both at the time of the severance of unity of title and the exercise of the easement.
Easement issues often arise because of confusion over boundary lines or because of a party's mistaken belief that he has an easement. Easement issues may also arise because of the easement holder's misuse of the easement or the landowner's interference with the easement holder's rightful use of the easement. Easement disputes may also result from the attempts of the easement holder or the landowner to change the location or size of the easement.
If you are involved in an easement dispute, you should consult with an experienced real estate attorney as soon as possible. A real estate attorney will evaluate your case and advise you of your legal options.