An easement is a right that someone has over limited use of someone else’s property. For example, say Person A owns a piece of land. Person B owns the adjoining property. However, Person B has an easement to walk through a certain area on Person A’s property. The easement is restricted to that specific use.
How are Easements Created?
They are usually created by contract. The parties create a written agreement granting the easement. Sometimes, a property owner will reserve an easement for themselves when giving up the property ownership. A casual conversation is usually not held to create an enforceable easement.
To create a written easement, you must have:
A written instrument;
Describing the easement’s location and interest;
A signature; and
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.
Affirmative Easements: the right to use someone else’s property for a specific purpose
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.
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.
Public Easements: Allow members of the general public to cross over the land.
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 Appurtenant: this easement “runs with the land,” and is transferred along with ownership of the land.
Easement in Gross: These are transferred separately from ownership of the property.
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?
Here are some examples of ways in which easements may be terminated:
Necessity: when the easement arose out of necessity, and that necessity ceases, the easement may be dissolved.
Abandonment: easement is terminated by its owner, who demonstrates intent to do so.
Release: property owner and easement owner mutually agree to end the easement.
Expiration: the easement was created with a formal expiration date.
Merger: one person gains ownership of both property and easement
Substantial interference: a court may determine that the easement should end, if the person using the easement does not use it in a reasonable way.
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. These include:
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.
Do I Need an Attorney?
If you are involved in a dispute over an easement, either as the owner of the property on which the easement is located, or as the owner of the right to the easement, then you may want to contact a real estate attorney to discuss rights and remedies.
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