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What Is an Easement?
An easement allows a person to take advantage of limited access to another person's property. An easement is only granted for a specific, limited purpose. Also, an easement is "non-possessory," which means that holding an easement does not mean that you hold an ownership interest in the property where the easement exists.
How Are Easements Created?
An easement is created either through a deed, will, or contract. The creation require the same procedures and formalities required for a real estate transaction. To create a valid easement, you must have: 1) a written instrument, 2) describing the easement’s location and interest, 3) a signature, and 4) proper delivery to the easement holder.
Easements can also be acquired in different situations that do not require an actual written instrument. for example, they may be created by necessity, where the easement is required to provide access for a piece of property that is surrounded by another person's property on all sides.
What Types of Easements Are There?
There are many types of easements. These include:
- Utility Easements: These easements are usually given to a utility company or local government in which they use a landowners land to run utility lines, cable wires, etc.
- Private Easements: Easements that are usually sold by a property owner to another for use of a driveway, water pipes, etc.
- Easements by Necessity: If it is absolutely necessary to cross someone's land, an easement by necessity usually exists. This occurs where there is no access to a public road or highway and the easement is necessary to provide access to a landlocked land.
- Prescriptive Easements: If your neighbor has been using a portion of land for a certain period of time, he may have a prescriptive easement which is usually acquired by routine, adverse use of another’s land.
- Easement by Estoppel: If a neighbor spends a substantial amount of money, labor, etc. towards the land, a court may grant an easement to the neighbor by estoppel.
- Easement in Gross: An easement that belongs to a person or entity and only involves one piece of land. This would usually apply to Utility companies using a landowner’s land to run cable wires, pipes, utility lines, etc.
- Negative Easements: A negative easement prevents a neighbor from using land in a certain way. This usually applies where an adjacent landowner is blocking a scenic view.
How Can I Prevent Someone from Acquiring an Easement on My Land?
There are several preventative measures you can use. These include:
- Put it in writing: If you let someone use your land, be sure to make a written agreement that specifies that you are not granting an easement.
- Give permission: When a property owner grants permission to another it can prevent a prescriptive easement from being granted.
- Post signs and regularly check your land: This will help a property owner determine if someone is using their property without permission.
How Do You Terminate an Easement?
Easements "run with the land" when ownership changes hands and generally have no set termination date. However, easements can be given set conditions such as time limits.
As a general rule, an easement holder has the right to use the land in whatever reasonable and convenient way in order to enjoy the purpose for which the easement was granted. However, an easement may be terminated if the court determines that the easement holder is using the easement beyond reasonable use in which it exceeds the scope of his or her rights originally granted. This occurs where there is substantially interference to the landowners land.
What Are My Remedies as a Landowner?
If the court determines that the landowner is unduly burdened by the easement because of the easement holder’s unreasonable use, the landowner is entitled to several remedies.
- Injunctions: Court order restricting and terminating the easement holder’s right to use the easement.
- Monetary Damages: If the easement holder’s excessive and unreasonable use has caused any damages to the landowners property or the interference has caused diminution in the value of the land, the landowner may recover monetary damages.
Seeking Legal Help
If there are any disputes over an easement or there are complications between a landowner and an easement holder on the use of the easement, then getting legal help by a experienced local real estate attorney is invaluable. The laws regarding easements vary from state to state, but the formation of an easement is comparable to transferring interest in land and requires professional legal assistance.
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Last Modified: 06-30-2014 03:46 PM PDT
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