An easement can affect the value of a property. If your property is subject to an easement, it is important to understand the type of easement in place to know how it will affect the use, control, or profitability of your property.
An easement is the right to enter or use someone else’s land for a specific purpose. An interest in an easement is non-possessory, meaning the holder of an easement can use it only for the purpose intended and may not exclude anyone else from using it.
Ingress is the right to enter onto a property using an easement. Egress is the right to exit from a property using an easement.
There are two types of easements as related to real property: appurtenant easements, and easements in gross.
Servient & Dominant Tenement
An easement creates a relationship between two parties or two parcels of land. The servient tenement is the owner whose land is being used, the party allowing the easement. The servient tenement is the one encumbered by the easement. The dominant tenement is the person or person’s land receiving the benefit of the easement.
An appurtenance is anything used for the benefit of the land. An appurtenant easement automatically transfers with the sale of the dominant tenement. The dominant and servient tenements of and appurtenant easement do not have to be mentioned in the deed (known as an “unlocated” easement), nor do the parcels have to touch each other (abut) to be valid.
Easement in Gross
It is possible to have an easement that is not appurtenant to any particular land. An easement not attached to any one parcel is known as an easement in gross. An easement in gross only has a servient tenement with no dominant tenement.
For example, John (who owns no land) may have an easement over Bob’s land for the purpose of getting to the stream where he regularly fishes. The easement for the path to cross the land does not need to specify where the path is actually located. Public utilities also have easements in gross that are not appurtenant to any one parcel. Another example is a commercial camping enterprise, which uses an easement over private property to take clients to remote sites which may otherwise be inaccessible.
Easements in gross are the most common types of easements. An easement in gross may not be terminated arbitrarily as with a license. A license is a permission to use property that may be revoked at any time.
Creating An Easement
Easements are created in various ways, commonly by express grant or reservation in a grant deed or by a written agreement. An easement should always be recorded to ensure its continued existence. An easement is recorded by dominant tenement, the party benefiting from the easement.
The servient tenement (giver of the easement) may grant the easement by deed or express written agreement, known as an express grant.
The seller of a parcel who owns adjoining land may reserve and easement or right-of-way over the former property. It is created at the time of the sale with a deed or express agreement.
Example: Mr. Seller owns two adjoining parcels of land. He sells parcel A to Ms. Homebuyer, and keeps parcel B for himself. Mr. Seller will have to cross parcel A to access the lake where he fishes. Mr. Seller will create an easement by express reservation, recorded at the time of sale, to use parcel A to access the lake from parcel B.
Implied Grant or Reservation
An implied grant or reservation occurs when the existence of an easement is obvious and necessary at the time a property is conveyed, even though no mention is made of it in the deed. In this case, the land must be divided (“severed”) so that the owner of a parcel is either selling part and retaining part or subdividing the property and selling pieces to different new owners. The easement must be at least reasonably necessary to the enjoyment of the original piece of property, and the use for which the implied easement is claimed must have existed prior to the severance or sale.
An easement by necessity is created when a parcel is completely land-locked and has no road access. This type of easement is automatically terminated once another way to enter and leave the property becomes available.
Prescription is the process of acquiring an interest – not ownership – in a certain property. An easement by prescription may be created by continuous and uninterrupted use by a single party for a period of five years. The use must be against the owner’s wishes and must be open and notorious. No confrontation with the owner is required and property taxes do not have to be paid. The party wishing to obtain the prescriptive easement must have some reasonable claim to the use of the property.
The method used for acquiring rights through prescription is similar to adverse possession, with the main difference being the payment of taxes. Adverse possession requires the payment of taxes for five continuous years, whereas prescription does not. A person may only acquire a specified interest in property through prescription, not title to the property.
The owner of the property with the servient tenement cannot revoke or terminate the easement. Easements may be terminated in eight ways:
Abandonment is the obvious and intentional surrender of the easement. For a prescriptive easement, the easement must not have been used for a period of five years.
Destruction of the Servient Tenement
If the government takes the servient tenement for its use, as in eminent domain, the easement is terminated.
The owner of the servient tenement may, by his or her own use, prevent the dominant tenement from using the easement for a period of five years, thus terminating the easement.
If the same person owns both the dominant and servient tenements, the easement is terminated.
The owner of the dominant tenement is the only one who can release an easement. A quitclaim deed is usually used by the dominant tenement to terminate the easement.
In order to terminate an easement, the owner of the servient tenement would bring an action to quiet title against the owner of the dominant tenement. A lawsuit to establish or settle title to real property is called a quiet title action.
Unless created by express grant, an easement may be terminated by non-use and the property owner has reason to believe that no further use is intended.
Example: John is a farmer who owns some land. Dave, the son of a neighboring farmer, cuts through John’s field on the way to school. Upon graduation, Dave leaves for college and stops taking the shortcut through John’s field. Farmer John, seeing that the easement was no longer in use, fenced his field. John’s action showed that he relied on Dave’s conduct, therefore the easement terminated through the estoppel.
Depending on the terms of the easement, excessive use can terminate an easement.
Example: Dan is neighbors with Betty. Even though Dan has street access, he asked neighbor Betty is he could use her private dirt road at the back of her property to get to his home because it was faster. Betty agreed. Later, Dan decides to rent out his 6 bedrooms to college students. Therefore, the traffic across the easement increased dramatically. Betty, understandably upset, terminated Dan’s easement due to excessive use.
Both the servient tenement and dominant tenement in an easement situation have some degree of diminished control of their property. Any diminished control will have a negative impact on the parcel’s property value. Make sure to keep track of those who access your property so as to avoid an unintended easement. It is always best to record easements expressly on the deed to avoid disputes or confusion and to protect your interest.