An easement is a non-possessory right of use over the land of another. Easements are typically granted for very specific and limited purposes. Examples of easements include:
Easements are classified as either affirmative or negative. Most easements are affirmative. This means that the easement holder is allowed to use the property in a certain way.
Some easements are negative. A negative easement prohibits a property owner from using land in a particular way. An example of a negative easement would be a prohibition against building a structure that is taller than one story. In modern residential real estate practice, rather than establishing negative easements, builders and developers create planned unit developments which are governed by Covenants, Conditions, and Restrictions (CC&R's). The CC&R's set forth permissible and non-permissible uses of the homes and property in the development.
Easements may be established in a number of ways. The most common way of creating an easement is by deed or contract. Such easements are known as express easements.
Easements may also be implied. An implied easement is one which is not expressed in writing by the parties but rather is inferred from for their conduct and the circumstances surrounding the transaction. Implied easements may be divided into two categories:
An easement may also be established by prescription. To establish an easement by prescription, a claimant must demonstrate that his use of the landowner's property was open, notorious, exclusive, and adverse and that his use continued for a period of fifteen years. A use is considered adverse if is not with the consent or permission of the landowner and is not accompanied by any recognition on the part of the landowner.
Easement disputes arise for a variety of reasons and can be very costly to resolve. Examples of common easement issues involve:
Easement disputes can be avoided by hiring a qualified real estate attorney who can review surveys and title searches to ascertain boundary lines and the location of improvements and existing easements. If a dispute has already arisen, a real estate attorney can assist you in clarifying your legal rights and protecting your interests.