An easement is a non-possessory, limited right of use over the land of another. Once an easement is granted, neither the grantor nor the grantee can change its location, size, or scope without the consent of the other party.
Easements may be express or implied.
There are two types of implied easements:
To establish an implied easement by necessity, a claimant must prove three elements:
Unity of title;
2. Severance of title; and
3. Necessity of the easement.
An implied easement by preexisting use will be found where:
The dominant estate (the land which benefits
from the easement) and the servient estate (the land which is burdened by the
easement) originated from a common grantor;
2. The use was in existence at the time the common owner severed the dominant and servient estates; and
3. The use was apparent, continuous, and necessary for the use and enjoyment of the dominant estate.
To establish an easement by prescription, a claimant must prove:
Continued use for twenty years;
2. The identity of the easement; and
3. Use which is adverse or under claim of right.
Under South Carolina law, if the claimant successfully proves that his use of the land over which he claims the easement was open, notorious, continuous and uninterrupted, his use of the easement will be presumed to have been adverse.
Easement disputes frequently arise as a result of poorly drafted easement agreements. Easement issues may also arise over the misuse of the easement by the easement holder or the interference by the landowner with the easement holder's rightful use of the easement. Other easement disputes may revolve around:
If you are involved in an easement dispute, you should hire an experienced real estate attorney rather than attempt to resolve the dispute yourself. An real estate attorney will review your deed, survey, and other relevant documents to determine whether you have a viable claim or defense and will advise you of your best course of action.