An easement is the legal right to use another person’s real property, for a specific purpose as well as a specific amount of time. An easement provides a person with the legal right to go through another person’s land when the usage is consistent with the specified easement restrictions.
While an easement grants a possessory interest in the property for a specific purpose, the actual landowner retains the title to the property. Because easements are associated with real property, they are governed by real property law.
An example of an easement would be if a property owner allows their neighbor to use their private road or path. Specific examples of easements include public utilities, power lines, and cable TV, although these are generally located underground.
Easements can be granted to anyone, generally neighbors, government agencies, and private parties. If you wish to know the location of sewer lines or hidden power lines, the best way to find those public utility easements would be to contact your local utility company. However, the best way to determine whether your property has an easement is to contact the County land records office, or your County Clerk’s office.
Most easements are recorded on or attached to the actual deed for the property that you own. As such, you could search for an easement at your local city hall. Any easement that is recorded on the title to your property will include a reference number, which can be used by the county clerk to locate the original easement document for you to make a copy of.
In terms of the different types of easement, each state may recognize several different types of easements depending on their real property laws. Generally speaking, there are three different types of easements:
- Easement By Prescription: Also known as a prescriptive easement, this is an implied easement that is gained under adverse possession. What this means is that someone other than the property’s original owner gains use or ownership rights to that property. A prescriptive easement can be established as long as a person has actually used the land or property openly and continuously, for a specified amount of time, without the permission of the owner. You could have a prescriptive easement if you routinely use a portion of someone else’s property;
- Easement By Necessity: Generally created by the law, and not by a specific promise or agreement between neighbors, the law implies the easement’s existence to achieve just results. An example of easement by necessity would be property that is landlocked, meaning it cannot be accessed except by traveling over other property. In response, the law creates an easement by necessity in order to allow the landlocked owner access to their own property, by way of the other landowner’s property; and
- Negative Easement: A negative easement creates an obligation or a restriction in which the property’s owner cannot use their own property in a specific way that would otherwise be legal. Negative easements are generally treated as restrictive covenants.
Some other examples of types of easement include:
- Express grants;
- Reservation easements;
- Affirmative easements;
- Utility easements;
- Public easements; and
- Easement by estoppel.
What Is An Easement Vacation?
If you are interested in developing your own property, but are restricted by nearby public roads or utilities, you can request the county to vacate their public use in order to allow you to develop. An example of this would be if you want to build an addition onto your home, but are unable to do so due to public pipes that are out of use. You could request the city to vacate the public pipes, which would allow you to build.
An easement vacation is when a city completely or partially abandons the public use of a road or easement. Here, the definition of “roads” include all:
- Highways; and
Easements can include public utilities, such as:
- Sewers; and
- Electric Lines.
Depending on the circumstances of each scenario, an easement vacation may be granted quickly through a summary vacation. Alternatively, an easement vacation may be granted through a longer process, known as a general vacation.
What Is A Summary Vacation? What Is A General Vacation?
A summary vacation is the quicker and simpler process to obtain an easement vacation. In a summary vacation, the county will notify affected property owners and agencies of the vacation request. After allowing time for a response, they will hold a hearing. This process can take approximately 6-8 weeks.
However, summary vacations are only available under certain circumstances. An example of this would be when the subject public path or easement has been unused, abandoned, or superseded for a specific amount of time.
If the requested vacation does not qualify for a summary vacation, it is considered to be a general vacation. Under a general vacation, the board of supervisors must adopt a resolution of their intention to vacate. After doing so, they must notify affected property owners and agencies and allow time for response. From there they will need to hold a hearing on the matter. This specific process can take approximately 10 to 12 weeks to reach a resolution.
When Are Easement Vacations Granted?
When determining whether or not to grant an easement vacation request, county courts will generally consider a variety of factors which include, but may not be limited to:
- Whether the road or easement is currently being utilized by the public;
- Whether the road or easement may be used by the public in the future;
- The existence of alternative or superseding roads or easements;
- How the easement vacation would likely affect other property owners and agencies; and
- The hardship experienced by the individual who is requesting the easement vacation.
An example of this would be how if the area requested for easement vacation:
- Is not being used by the public;
- Will not negatively affect neighbors or public agencies; and
- Would greatly benefit the individual who is making the request, the county court could be more likely to grant the request.
However, if the county is using the land, or if an easement vacation would negatively affect neighbors or public agencies, the county will be less likely to grant the easement vacation.
What Else Should I Know About Easements In General?
To reiterate, an easement by necessity is an easement that is created by law in order to allow a person the right of access to their property. If your land is subject to an easement by necessity, you legally cannot interfere with your neighbor’s use of the easement in order to access their home. Additionally, some utility companies or cities are granted easements which have been recorded in the plat records long before homes are built on the land.
Utility easements grant the city or a utility company the right to use and access a person’s property for the purposes of providing public utilities. These utilities include electricity, water, sewer lines, and/or gas. Utility easements attach to property deeds, and as such pass to all future owners whenever the property is transferred or sold.
Do I Need An Attorney To Request A Public Street Or Easement Vacation?
If you would like to request an easement vacation, or have any questions concerning easements in general, you will need to consult with a local and experienced property lawyer. An attorney can help you understand your state’s specific process when requesting an easement vacation, and will also be able to represent you in court, as needed.