An easement gives you the legal right to use another person’s real property for a specific purpose and for a specific length of time. It essentially gives someone the right to trespass on your land so long as doing so is consistent with the easement restrictions. While it gives you a possessory interest in the land for that specific purpose, the landowner still retains title to the property.

Because the easement can be created for specific purposes, there are different types of easements. Easements can be given to anyone, including neighbors, government agencies or private parties. Because easements concern real property, they are governed by real property law.

How Do I Create an Easement?

Easements are typically created by a legal agreement. Easement disputes often arise because there is no written evidence of the easement or the easement document is defective in some way.

So, in order to prove you have an easement, you should be prepared to present the following:

  1. A written contract that identifies the owner of the real property and beneficiary of the easement;
  2. A clear and complete description of the easement’s location;
  3. The period of time that the easement is in effect; and
  4. Signatures of the owner and the easement grantee

Keep in mind that a written agreement is recommended, but an easement can be created in some cases without a written document. For example, if the property benefiting from the easement is landlocked, an easement can be created by necessity.

Are there Different Types of Easements?

Under real estate laws, there are several different types of easements. These include:

  • Express Grants: This occurs when the owner of the real property creates an easement that is reflected in the property deed;
  • Reservation Easements: The landowner reserves an easement in the deed used to convey the property that requires new owners to observe the restriction. For example, you sell your lakefront property, but want to continue having access to the lake. You can reserve this in your deed as an easement:
  • Affirmative Easements: This gives someone the right to use the real property for a specific purpose. Most of these types of easements are private and long term;
  • Negative Easements: Contrarily, a negative easement creates a restriction on how a landowner can use their property even if the restricted activity is legal.
    • For example, suppose that a new condo is being built and owners of an existing condo building want to ensure that their view of the ocean is not blocked by the new condo. In this instance, a negative easement may address that concern;
  • Utility Easements: Utility companies and service providers routinely create easements with property owners to allow them to run utility or cable lines;
  • Public Easements: these types of easements allow the general public to cross over land. Streets and sidewalks are common examples of these;
  • Easements by Necessity:  An easement by necessity is usually implied when the beneficiary of the easement needs to cross over someone else’s property to access a street or highway. Usually, the parcels in question were all joined together or owned by the same person.
    • However, when the parcels were sold off, a landlocked property was created. If the easement is truly necessary, a court can force the creation of an easement by necessity even if the landowner objects;
  • Prescriptive Easements: You may have a prescriptive easement if you routinely use a portion of someone else’s property. In order for the easement to be created, this adverse use of the landowner’s property must be openly known to the landowner and neighbors and must be continuously used by the easement beneficiary for the period required by the state; and
  • Easement by Estoppel: A court may find an easement has been created if a neighbor spends a significant amount of money, labor or resource to maintain or upgrade the easement.

How Do I Terminate an Easement?

Terminating an easement depends on the purpose for which the easement was created. Here are some common ways to terminate an easement:

  • Necessity: If the circumstances giving rise to the easement by necessity ceases or is dissolved, the easement will terminate;
  • Abandonment: The easement can be terminated if the easement beneficiary walks always from the easement;
  • Release: Termination may result if both parties to the easement mutually agree to terminate the easement;
  • Expiration: The term of use for the easement expires; and
  • Interference: A court will terminate the easement if the easement beneficiary is substantially interfering with the property owner’s use or ownership of the land.

Are there Any Remedies Available to Me as a Landowner?

If you are a landowner who has been unduly burdened by an easement, you can seek relief from the court. If successful, the court can restrict the use of the easement or even terminate it if the circumstances require.

If the easement user’s behavior is particularly obstructive or substantially interferes with the landowner’s right to use the property, the court can also grant monetary damages.

Do I Need an Attorney for Assistance with Easement Issues?

As a landowner, you want absolute right to use your property as you see fit. If there is an easement on your property and you would like to know your rights, contact a real estate attorney. Also, if you would benefit from the creation of an easement, you also should contact an attorney.