What are Easements and Rights of Way?

Posted by CourthouseDirect.com Team - 20 February, 2019

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easements and rights of way

It’s a rare piece of property that has no need to allow encroachment of any kind. In most municipalities and counties as well as at the state and federal level, parts of most land parcels must be given over to use by someone other than the owner.

Utility work, legal pathways to other parcels, and agreements for mutual use are some of the reasons part of your land is split from the rest. For these purposes, an instrument called an easement is created.

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What Is An Easement?

An easement is a non-possessory right for a person or entity to use a piece of real estate they do not own for a particular purpose.

  • Easements are written into the deed to the property of the use and the property of the owner.
  • Easements can be left off the property deed and so will end at the sale of the property, the death of the grantor, or on a predetermined expiration date.
  • Easements can be found during a title search.

Easement property is called “servient land or estate,” and the land is considered to be “burdened” by an easement. The land that enjoys the benefit of an easement is called the “dominant land or estate.” An easement typically allows only limited use of the burdened land, which is spelled out in the easement contract.

Most easements are roadways or paths through or along the edge of the property, allowing others to access areas behind or within the property. An easement is meant to enable reasonable use for the passage and right of travel for the easement holder or for the benefit of land, which must be accessed via another’s property.

The ownership and benefits of the land within the easement still belong to the property owner, yet benefit the broader community with greater access and freedom of movement.

How Are Easements Created and Dissolved?

Easements are created by contract, a written agreement granting one person or entity the right to limited use of land owned by someone else. Easements may be reserved by a landowner for self-use when selling a piece of property. In any case, without a formal contract, easements created by a casual discussion are not enforceable.

  • Easements are created by a written instrument - a contract.
  • The contract describes the location and the interest (the use to which it is put)
  • The owner signs the contract.
  • The contract is delivered to the easement grantee or holder.

In certain circumstances, a written contract or instrument is not required. An easement may be created to provide access to someone’s property that is enclosed by another owner’s property.

Easements can be dissolved or terminated in several ways.

  • If it arose out of necessity and the necessity terminates, so does the easement
  • An owner can abandon an easement by demonstrating an intent to terminate it.
  • A property owner and easement holder may agree to end the easement mutually.
  • An easement may be created with a specific expiration date.
  • An easement may be dissolved through a merger if a single entity gains ownership of both the property and the easement.
  • If a court finds it is accessed beyond reasonable use, such that the easement substantially interferes with the landowner, an easement can be dissolved, and the use ended. Since the property owner granting the easement typically assumes all costs for maintenance, insurance, and property taxes, it is only fair that unreasonable access is ended.

In some cases, adjoining property owners agree to split the cost of maintaining a mutual easement, but any understandings of this nature should be spelled out in a contract signed by both parties.

Types of Easements

There are several types of easements, defined by their purpose of use.

  • Affirmative easements give the right to use someone else’s property for a specific purpose.
  • Negative easements prevent others from using the owner’s property in specific ways, such as blocking a scenic view.
  • Utility easements are granted to utility companies or local governments to run cable or pipes, or for other uses.
  • Private easements are sold by the property owner to someone else to use as a driveway or lay pipes.
  • Public easements allow the general public to cross the property.
  • Easements by necessity exist when it is absolutely necessary to cross someone’s property, such as when there is no access from a landlocked parcel to a public roadway.
  • Prescriptive easements are acquired by routine, adverse use of another's land, as when a neighbor has used a part of the property for a certain period of time without a contractual agreement.
  • Easement by estoppel is the granting of an easement to a neighbor if he or she spends substantial amounts of money or labor toward the land so burdened.
  • Easement by appurtenant literally means the easement “runs with the land,” and is transferred along with ownership of the land.
  • Easement in gross is an easement transferred separately from the ownership of the property.

When purchasing property, be diligent in determining whether an easement has been granted by contract or by adverse action.

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What Is a Right-of-Way?

A right-of-way is a particular type of easement that provides the right to cross a piece of property to travel from one point to another. A right-of-way may be granted by an affirmative easement, private easement, public easement, or an easement by necessity.

Utility easements could be considered a type of right-of-way.

Easements and Land Purchases

If you are purchasing property, make sure you are aware of all easements attached to the deed and their specific purpose. Deeded easements come with the property, and if you do not care to have a non-owning entity using your land, you may need to look elsewhere for a property. 

In a different example, if you want to access a nearby park or other property by using someone else’s property, you should ensure an easement agreement is in place to allow you to do that. Otherwise, you must prepare to ask the owner for an easement or find a different property.

In other words, do your due diligence when contemplating a land purchase. Research local deeded easements on any property you are considering for purchase to avoid unpleasant surprises after you have bought the land.

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Topics: Real Estate, Legal


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