Real property is property which is fixed in nature and includes land or buildings. Real property also includes anything that is growing on, built upon, or fixed to the land.

This may include things such as man-made buildings or crops. Real property includes property which does not move or which is attached to the land. This is distinguished from personal property which can be moved or physically transferred.

Real property may also be called premises or real estate. It can also include things which are permanently located under or within the land. This many include things beneath the land, such as:

  • Oils;
  • Gasses; and
  • Minerals.

Pursuant to real property laws, the individual who owns the land has what is often called a bundle of rights associated with ownership of the land. The bundle of rights, also called incidents of ownership, includes the rights to use the land in ways including:

  • Selling;
  • Leasing;
  • Exclusively possessing;
  • Encumbering, or mortgaging; or
  • Disposing of by a will or other legal instrument.

What is an Easement?

An easement is a legal term which refers to a right to use another individual’s real property for a specific purpose and for a specific amount of time. An easement allows one individual the legal right to travel through another individual’s property, so long as the usage is consistent with the specified easement restrictions.

A landowner still retains the title to the property which is affected by the easement even though the easement grants a possessory interest in the land for a specific purpose. An easement may be given to any individual, including:

  • A neighbor;
  • A government agency; and
  • A private party.

One example of an easement would be when a property owner allows their neighbor to use their private road or path. Common types of easements include:

  • Public utilities;
  • Power lines; and
  • Cable TV, although these are often underground.

Because an easement is associated with real property, it is governed by property laws.

Are There Different Types of Easements?

Yes, there are different types of easements. In addition, each state may recognize different types of easements depending upon that state’s real property laws.

Generally, there are three categories of easements, including:

  • An easement by prescription;
  • An easement by necessity; and
  • A negative easement.

An easement by prescription, also called a prescriptive easement, is an implied easement which is gained by adverse possession. This means that an individual other than the original property owner fains ownership rights or use of that easement.

So long as an individual has actually used the property or land continuously and openly for a specific amount of time, without the owner’s permission, they are able to establish a prescriptive easement. An individual may have a prescriptive easement if they routinely use a portion of another individual’s property.

Prescriptive easements may come into being when the legal elements of adverse possession are met. Adverse possession occurs when one individual utilizes another individual’s land for a specific period of time which is set by state law in a manner which is:

  • Open;
  • Notorious;
  • Uninterrupted;
  • Hostile; and
  • Adverse.

An easement by necessity is a type of easement which is created by the law and not by a specific promise or agreement between neighbors. The law implies the existence of the easement in order to achieve just results.
An example of an easement by necessity would include a parcel of land which is landlocked. A landlocked parcel is one that cannot be accessed except by traveling over another parcel of property.

Because of these types of situations, the law creates easements by necessity to permit a landlocked owner to access their property. This is typically done by creating an easement on another adjacent landowner’s property for the purpose of ingress and egress to the landlocked parcel.

A negative easement is an easement which creates a restriction or an obligation for a property owner which prohibits them from using their property in a certain way which would otherwise be legal. A negative easement is typically treated as a restrictive covenant.

An example of a negative easement would occur if a new condominium was being built and the owners of an existing building did not want their ocean view blocked by the new building. A negative easement restricting the height of the new building could be used to address this issue.

Other types of easements may include:

  • Express grants;
  • Reservation easements;
  • Affirmative easements;
  • Utility easements;
  • Public easements; and,
  • Easement by estoppel.

How is a Public Easement Different from a Private Easement?

There is a difference between a private easement and a public easement. The difference is simply who benefits from the easement.

A private easement grants specific individuals the right to use another individual’s land for a particular reason. A public easement, on the other hand, grants this right to the general public.

One example of public easements is the right to use public highways and streets. A public easement is usually expressly granted. However, several states, including New Mexico and California, recognize public easements by prescription or through implied grants.

What is Eminent Domain?

Pursuant to the United States Constitution, the federal government is permitted to take and use property for a public purpose if they provide the landowner just compensation. In general, state and federal governments have delegated their eminent domain powers to local municipalities and governments.

An individual may be able to fight against the government’s power of eminent domain by showing one of the following:

  • The property in question would not be used to enhance the public good; and/or
  • The compensation offered is not sufficient.

What is a Public Purpose for Eminent Domain Matters?

In order for the government to take property using the powers of eminent domain, it must show that taking the property would be used for a public purpose. In general, the government is provided with a lot of leeway on what exactly constitutes a public purpose.

In addition, courts are often reluctant to question the purpose which the government has indicated is the reason for their taking of the land.

What is Just Compensation in Eminent Domain Matters?

Pursuant to the United States Constitution, the government is not permitted to take an individual’s land or any part thereof without just compensation. Just compensation means that the government is required to pay the individual for the land which they take and use for a public purpose.

How Are Public Easements and Eminent Domain Related?

In certain cases, the government will require an individual to open up a part of their land for use by the public. An example of this would be requiring the owner of a beachfront property lot to permit members of the public to access the beach through the owner’s lot.

This requirement may be considered a taking by the government using its powers of eminent domain. If that is the case, the Constitution requires the government to compensate the individual for the easement.

Do I Need a Lawyer?

It is essential to have the assistance of a real estate lawyer for any easement issues you may have. The laws governing eminent domain and easements may vary from state to state. They may also be complex.

Your lawyer can review the easement and advise you what your rights are as well as what remedies may be available to you. If you are required to go to court, your attorney will represent you.