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Easement

From Academic Kids

An easement is the right of use over the real property of another. Historically it was limited to the right of way and rights over flowing waters. Traditionally it was a right that could only attach to an adjacent land and was for the benefit of all, not a specific person. The right is often described as the right to use the land of another for a special purpose. It is distinguished from a license that only gives one a personal privilege to do something on the land of another usually the permission to pass over the property without creating a trespass.

Easements may be considered public or private. A private easement is limited to a specific individual such as the owner of an adjoining land. A public easement is one that grants the right to a large group of individuals or to the public in general, such as the easement on public streets and highways or of the right to navigate a river. An appurtenant easement is one that belongs to the owner of the land that benefits from the easement, as compared to a other easements (easements in gross) that do not require ownership to obtain the use.

An easement may be implied or express. An express easement is typically included in a document such as a deed or other officially recorded grant, or incorporated by reference to a subdivision plan, or restictive covenants in an association agreement.

Contents

Examples of easements

Easements include:

  • Aviation easement. The right to use the airspace above a specified altitude for aviation purposes. Also known as avigation easement, where needed for low-altitude spraying of adjacent agricultural property.
  • Utility easements including:
  • Sidewalk easements. Usually sidewalks are in the public right-of-way, but sometimes they are on the lot.
  • Solar easements. Prevents someone from blocking the sunlight.
  • View easements. Prevents someone from blocking the view of the easement owner, or permits the owner to cut the blocking vegetation on the land of another.
  • Driveway easements, also known as easement of access. A few lots do not border a road, so an easement through another lot must be provided for access. Sometimes adjacent lots have "mutual" driveways that both lot owners share to access garages in the backyard. The houses are so close together that there can only be a single driveway to both backyards. The same can also be the case for walkways to the backyard: the houses are so close together that there is only a single walkway between the houses and the walkway is shared. Even when the walkway is wide enough, easements may exist to allow for access to the roof and other parts of the house close to a lot boundary. To avoid disputes, such easements should be recorded in each property deed.
  • Beach access. Some jurisdictions permit residents to access a public lake or beach by crossing adjacent private property. Similarly, there may be a private easement to cross a private lake to reach a remote private property, or an easement to cross private property during high tide to reach remote beach property on foot.
  • Dead end easement. Sets aside a path for pedestrians on a dead-end street to access the next public way. Could be contained in covenants of a homeowner association, notes in a subdivision plan, or directly in the deeds of the affected properties.
  • Recreational easements. Some U.S. states offer tax incentives to larger landowners if they grant permission to the public to use their undeveloped land for recreational use (not including motorized vehicles). If the landowner posts the land (i.e., "No Trespassing") or prevents the public from using the easement, the tax abatement is revoked and a penalty may be assessed.

Trespass upon easement

Blocking access to someone who has an easement is a trespass upon the right of easement and creates a cause of action for civil suit. For example, putting up a fence across a long-used public path through private property may be a trespass and a court may order the obstacle removed. Turning off the water supply to a downhill neighbor may similarly trespass on the neighbor's water easement.

Open and continuous trespassing upon an easement can lead to the extinguishment of an easement by prescription (see below), if no action is taken to cure the limitation over an extended period. I have an easement on someone's land if i need to cross it to get to my land.

Easement by necessity

Also, easement by implication.

Similarly, in a rural area, landlocked parcels may have a private easement of access upon adjacent land, if crossing that land is absolutely necessary to reach the landlocked parcel. There is an implied easement arising from the original subdivision of the land for continuous and obvious use of the adjacent parcel (e.g., for access to a road, or to a source of water). However, the landlocked owner might be required to obtain a license for a new commercial use or to cause damage during access (e.g., a logging road or blazed trails).

Some U.S. state statutes grant a permanent easement of access to any descendant of a person buried in a cemetery on private property.

Restrictive Easement

A restrictive easement is a condition placed on land by its owner or by government that in some way limits its use, usually regarding the types of structures which may be built there or what may be done with the ground itself. For instance, if a leased piece of land is not precluded by zoning laws (probably because it is not in a township) from having people inhabit it, and the government feels that for some reason living there would be especially unsafe, it may place a restrictive easement on the property stating that no one may live there. Restrictive easements are also frequently placed on wetlands (i.e., a conservation easement) to prevent them from being destroyed by development.

Another type of restrictive easement is an historic preservation easement in which the owner of an historic structure agrees not to change specified historic elements of the facade. This has come under fire recently as property owners were claiming tax breaks for donating historic easements to charitable institutions, where the buildings were located in historic districts and changes were already strictly limited (i.e., the donation was worthless).

Easements by Prescription

Easements by prescription, also called prescriptive easements, are easements that arise even though they are not expressly created or recorded. It is similar to adverse possession, however prescriptive easements do not convey the title to the property in question, only the right to utilize the property for a particular purpose and often require less strict requirements of proof, and generally needs not be hostile.

Easements by prescription generally hold the same legal weight as written easements. Easement by prescription is typically found in legal systems based on common law, although other legal systems may also allow easement by prescription.

Laws and regulations vary among local and national governments, but some traits are common to most prescription laws. Generally, the use must be open, actual, and continuous. Unlike adverse possession, prescriptive easements typically do not require exclusivity and may or may not be hostile. Some jurisdictions also require that the use be notorious.

If the use is hostile, the period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws (the statute of limitations on trespass). In some jurisdictions, if the use is not hostile but given actual or implied consent by the property owner, the prescriptive easement may become binding immediately. In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement.

Government owned property held for common use is generally immune from prescriptive easement in most cases, but some other types of government owned property may be subject to prescription in certain instances.

Right of way for access is among most common easement by prescription.

Easement in gross

An easement that is attached to an individual person or legal entity rather than a parcel of real estate served by the easement. This easement is personal in nature. In earlier times easements in gross were considered neither assignable nor inheritable, but today, most courts hold that easements in fee can be assignable in some circumstances. Even so, this type of easement does not automatically carry-over to subsequent property owners like easements in fee or appurtenant easements. Easements in gross typically cannot develop into easements by prescription even if they meet all other use requirements.

Torrens title registration

Under the Torrens title registration system of land ownership registration, easements and mortgages are recorded on the titles kept in the central Land Title Registry. Any unrecorded easement is extinguished and no easement by prescription or implication may be claimed.

See also


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