Easement

An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B".^[1] An easement is a property right and type of incorporeal property in itself at common law in most jurisdictions.

For spiral easements on railroads, see Track transition curve.

An easement is similar to real covenants and equitable servitudes.^[2] In the United States, the Restatement (Third) of Property takes steps to merge these concepts as servitudes.^[3]

Easements are helpful for providing a 'limited right to use another person's land for a stated purpose. For example, an easement may allow someone to use a road on their neighbor’s land to get to their own.' Another example is someone's right to fish in a privately owned pond, or to have access to a public beach.

The rights of an easement holder vary substantially among jurisdictions.

open and notorious (i.e., obvious to anyone)

actual, continuous (i.e., uninterrupted for the entire required time period); this does not necessarily require use daily, weekly, etc.

adverse to the rights of the true property owner

hostile (i.e., in opposition to the claim of another; this can be accidental, not "hostile" in the common sense)

continuous for a period of time defined by statute or appellate case law

An easement is appurtenant to and only for the benefit of specific land whereas a licence is a personal right.

An easement is owned incorporeal property which cannot be revoked whereas a license is revocable.

An easement owner, as the owner of incorporeal property, can take legal action regarding their property in their own name, whereas a licence holder has no standing of their own to take legal action regarding the property against any other party (other than the landowner) and must have the landowner take action or take action in the landowner's name.

An easement, is owned incorporeal property that, usually, may be transferred to successive owners whereas a licence is a personal right.

An easement may run with the land or terminate whereas a license is typically limited in duration.

A license is often uninsurable.

A license is often not recorded.

A license is often vested in one person.

Licenses to use property in a nonpossessory manner are similar to but more limited than easements but, under certain circumstances, can be transformed into easements by the courts. Some general differences do exist:

Easements, as property rights owned by the beneficiary and usually recorded on titles, are stronger than licenses which are merely personal rights under contract. Purported licenses that have any of the properties of an easement may be determined to be easements or bound by the higher standards for termination of an easement.

Release: agreement to terminate by the grantor and the grantee of the easement

Expiration: the easement reaches an expiration date, event or condition.

Abandonment: the holder demonstrates intent to discontinue the easement

[21]

Necessity: If the easement was created by necessity and the necessity no longer exists

: The easement is unused and the servient estate takes some action in reliance on the easement's termination

Estoppel

Prescription: The servient estate reclaims the easement with actual, open, hostile and continuous use of the easement

Condemnation: The government exercises eminent domain or the land is officially condemned. Depending on the situation this could take a number of forms. A government can condemn a plot of land and remove an easement even if the easement is in favor of the adjoining property owner.^[23]

[22]

Statutory termination: The easement is terminated by or under a statute law.

A party claiming termination should show one or more of the following factors:

, also called solar easement. The right to receive a minimum quantity of light in favour of a window or other aperture in a building which is primarily designed to admit light.

Right to light

. The right to use the airspace above a specified altitude for aviation purposes. Also known as aviation easement, where needed for low-altitude spraying of adjacent agricultural property.

Aviation easement

.

Railroad easement

Utility easement

Storm drain

Sidewalk easement. Usually sidewalks are in the public right-of-way.

View easement. Prevents someone from blocking the view of the easement owner, or permits the owner to cut the blocking vegetation on the land of another.

Driveway easement, also known as easement of access. Some lots do not border a road, so an easement through another lot must be provided for access. Sometimes adjacent lots have "mutual" driveways that both lot owners share to access garages in the backyard. The houses are so close together that there can only be a single driveway to both backyards. The same can also be the case for walkways to the backyard: the houses are so close together that there is only a single walkway between the houses and the walkway is shared. Even when the walkway is wide enough, easement may exist to allow for access to the roof and other parts of the house close to a lot boundary. To avoid disputes, such easement should be recorded in each property .

deed

access. Some jurisdictions permit residents to access a public lake or beach by crossing adjacent private property. Similarly, there may be a private easement to cross a private lake to reach a remote private property, or an easement to cross private property during high tide to reach remote beach property on foot.

Beach

Dead end easement. Sets aside a path for pedestrians on a dead-end street to access the next public way. These could be contained in covenants of a homeowner association, notes in a subdivision plan, or directly in the deeds of the affected properties.

Recreational easement. Some U.S. states offer tax incentives to larger landowners if they grant permission to the public to use their undeveloped land for recreational use (not including motorized vehicles). If the landowner posts the land (i.e., "No Trespassing") or prevents the public from using the easement, the tax abatement is revoked and a penalty may be assessed. Recreational easement also includes such easements as equestrian, fishing, hunting, hiking, trapping, biking (e.g., Indiana's ) and other such uses.

Calumet Trail

. Grants rights to a land trust to limit development in order to protect the environment.

Conservation easement

Historic preservation easement. Similar to the conservation easement, typically grants rights to a organization to enforce restrictions on alteration of a historic building's exterior or interior.

historic preservation

Easement of . Prohibits an adjoining land owner from digging too deep on his lot or in any manner depriving his neighbor of vertical or horizontal support on the latter's structures, e.g., buildings, fences, etc.

lateral and subjacent support

Communications easement. This easement can be used for wireless communications towers, cable lines, and other communications services. This is a private easement and the rights granted by the property owner are for the specific use of communications.

Ingress/egress easement. This easement can be used for entering and exiting a property through or over the easement area. This might be used for a person's driveway, going over another person's property.

See also, Right of way (property access)

The following rights are recognized of an easement:

Trespass[edit]

Blocking access to someone who has an easement is a trespass upon the easement and creates a cause of action for civil suit. For example, putting up a fence across a long-used public path through private property may be a trespass and a court may order the obstacle removed. Turning off the water supply to a downstream neighbor may similarly trespass on the neighbor's water easement.

Open and continuous trespassing upon an easement can lead to the extinguishment of an easement by prescription (see above) if no action is taken to cure the limitation over an extended period.

Torrens title registration[edit]

Under the Torrens title system of land ownership registration, easements are recorded on the titles kept in the central land registry or cadastre and any unrecorded easement is not recognised. No easement by prescription or implication may be claimed unless it was created prior to the land being brought under the Torrens system or there is an exception to indefeasibility.^[24]

(Legal Cases regarding Real Estate Taking and Easements)

http://caselaw.lp.findlaw.com/data/constitution/amendment05/16.html

Deed documents outlining easements for UK properties

Deed Of Easement Documents (UK)

Irish law on easements: Part 8 of the Land and Conveyancing Law Reform Act 2009

Archived 2017-08-17 at the Wayback Machine Definition of Appurtenant Easement