Terminating an Easement

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 What are Easements?

Easements are a legal concept in real property law which provides one individual with the legal right to use another individual’s property for a specific amount of time or for a specific purpose. Easements provide individuals with legal rights to pass through other individuals’ pieces of property, so long as their usage is consistent with the easement restrictions which were specified.

Although easements give a possessory interest in a piece of property for a certain purpose, the owner of the land still retains the title to the property. Easements may be provided to anyone, including:

  • Private parties;
  • Government agencies; and
  • Neighbors.

There are several common types of easements, which include:

  • Power lines;
  • Cable television lines, although they are usually underground; and
  • Public utilities.

Easements are governed by real property law because they are associated with parcels of real property.

Are There Different Types of Easements?

Yes, there are different types of easements as different states may recognize different types, depending upon the property laws of that state. There are three general categories of types of easements, including:

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

An easement by prescription, or a prescriptive easement, is an implied easement which an individual gains by adverse possession. An individual may acquire an easement by adverse possession when they use that portion of the land, without permission from the owner, for the period of time which is required by the law of the state in a manner which is:

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

An easement by necessity is an easement which is created by the law instead of by an agreement between neighbors or by a specific promise. In some cases, the law will imply the existence of an easement to achieve just results.

A common example of this type of easement includes which a parcel of land is landlocked, meaning that it cannot be accessed except by traveling over another parcel of property. In this situation, the law will create an easement by necessity to allow the owner of the landlocked parcel to access their own property by using another individual’s property.

Negative easements create obligations or restrictions regarding what a property owner can or cannot do on their property or how they can use their property in a manner which would otherwise be legal. Generally, negative easements are treated as restrictive covenants.

A common example of this type of easement includes situations where buildings are being built which may obstruct views from existing buildings. For example, if a new building was being built at the beach, an existing hotel would not want their ocean view blocked by the new building. A negative easement would be used to address this concern.

There are also numerous other types of easements, including:

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

Do I Have to Give an Easement?

As previously noted, easements by necessity are easements which are created by law to permit an individual to have a right of access to their property. If an individual’s land is subject to an easement by necessity, they are not permitted to interfere with their neighbor’s use of the easement to access their home.

Additionally, some utility companies or cities are granted easements which are recorded in the plat records prior to any homes or buildings being constructed on the land. A utility easement is an easement which is granted to a utility company or a municipality which provides them the right to access and use an individual’s property for the purpose of providing a public utility, which may include:

  • Electricity;
  • Water;
  • Sewer lines; and
  • Gas.

A utility easement attaches to a property deed and passes to all future owners of the property whenever it is transferred or sold.

How to Determine Amount of Compensation for Easement?

It is important to note that there are some types of easements for which an individual may seek compensation and there are some which the law allows that do not require compensation. The amount of compensation provided for a private easement is typically negotiated in the real estate contract.

When an individual is negotiating an easement, it is important to take the following steps:

  • Specify the scope of the easement;
  • Negotiate a price; and
  • Record the agreement in writing.

It is very important to specify the scope of the easement when an individual is granting a private easement to another party. For example, if an individual is granting their neighbor the right to use their private fishing lake or pond, they should ensure they specify the terms of the easement, including:

  • The times the easement can be used;
  • The location of the easement; and
  • Any other restrictions.

It is important to negotiate a price when an individual is negotiating an easement. An individual should search the local records to obtain an idea of the general price for such an easement.

For example, if an individual is allowing another individual to enter their land and access their pond on a temporary basis, the individual may wish to charge a fee such as $100 per year. On the other hand, if the individual is allowing the other party to access the pond on a permanent basis, it may be acceptable to negotiate for a higher fee for the easement.

It is very important to get the easement agreement in writing. The agreement should be signed by all of the parties involved and be notarized.

Once the easement has been fully executed, the individual should file the easement in their local county’s land records office.

Do Easements Ever End?

Generally, an easement runs with the land. This means, when the ownership of the property changes, the easement remains and has no set termination date.

However, an easement may be given conditions including time limits. In some cases, an easement may be terminated, depending upon the type of easement.

What Are the Ways to Terminate an Easement?

In order to terminate an easement, there must be a condition for the purpose of the easement which has changed, which may include:

  • The purpose for creation of the easement no longer exists;
  • Ownership of the land where the easement sits and of the easement merges into one owner;
  • The owner of the land releases the easement;
  • Abandonment of the easement;
  • Nonuse if it is a prescriptive easement;
  • Adverse possession by the owner of the land which is affected by the easement;
  • Court decision of a quiet title action against someone claiming an easement; or
  • Misuse of the easement.

Do I Need the Advice of a Lawyer Concerning the Termination of an Easement?

It is essential to have the assistance of a property lawyer concerning the termination of an easement. Terminating an easement affects an individual’s long term property rights whether they are the owner of the easement or the owner of the land upon which the easement sits.

Easements can be common on real property. If you are a landowner, you have the right to use your property as you see fit, including granting easements.

In some cases, however, it may be difficult to locate an easement on your property. An easement may also interfere with the use of your property.

Your attorney can help with any easement issues you have, whether you are negotiating an easement or you are having issues with an existing easement. Your lawyer can assist you with ensuring your rights are protected as well as ensure that the property transaction is properly recorded.

Your attorney can also assist you with determining if there are any valid easements which exist on your property. If you have to go to court, your attorney will represent you.

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