Real Estate Laws on Easements
Published 17 Feb 2017
The term easement in real estate law refers to the right of one party who is not a bona fide owner of a landed property, to access a specified portion or the whole of another party’s landed property for his personal use. There are two parties to an easement, the owner of the land who holds a title to the property on which another person holds an easement, and the holder of the easement. Holding of an easement on a piece of land does not confer ownership of the property on the holder. An easement merely allows the easement beneficiary to access that part of the property which the easement covers, for his personal use. The ownership of the piece of land on which an easement exists, still resides with the one holding the title to the land. However, as long as someone apart from the title holder holds an easement to a portion of a real estate property, the bona fide owner of the property cannot erect a permanent structure on that that portion of his real estate.
Easements come in different forms and can in most cases be conferred on the beneficiary only by authority and or express permission of the owner to title to the land on which the easement resides. There are two broad categories of easements: Public easement and private easement. An example of a private easement is the type granted to a person to use part or all of a piece of land adjoining to that of the holder of the easement. The easement holder can use the land for his personal purpose, but he cannot erect a permanent structure on his easement. For example, a property owner may not be able to gain access to his property without passing through the adjoining property owned by someone else. In that case, he will need to approach the owner of the adjoining property to grant him an easement. The easement may be in form of a strip of land through which the easement benefactor passes to get to his own property.
Types of Easements
Easements can be created in a number of ways. Some of the more common types of easements are: Appurtenant easement, ‘In gross’ easement, easement ‘By necessity’, and easement ‘By Prescription’. These are the most common private and public easements. There are other easements which are created for the protection of our common historical heritage, like monuments, historical buildings and ecological sites. We shall limit our discussion to the more common easements which are daily encountered in real estate transactions. We shall discuss the creation of these easements, their limitations, as well as the responsibilities and privileges of holders of these easements.
Where two parcels of land or real estates are adjacent to each other, the land or estate on which an easement resides is called the servient tenement, while the other land whose owner benefits from the easement is called the dominant tenement. In the case of two adjacent landed properties or real estates, the dominant tenement owner may need to hold an easement on the servient tenement in order to get to his own land. Hence the dominant tenement is the beneficiary, while the servient tenement bears the burden of the easement. This type of easement is called an ‘Appurtenant’. In an appurtenant easement, the dominant tenement owner is allowed to pass over the servient tenement either on foot or by motorized vehicle. For example, in order to get to his property, the dominant tenement owner, his family, friends and visitors can use the driveway of the servient tenement.
Dominant tenement versus servient tenementAppurtenant easements are usually very difficult to revoke. The servient tenement is saddled with the inconveniences of the presence of an appurtenant easement on it. If the burden of the presence of an appurtenant easement becomes too great on the servient tenement, or the owner wishes to construct a permanent structure on the easement; or use it for some other purpose, he will have to provide an alternative access route to the dominant tenement. Where it is necessary for example to reroute a driveway on which an appurtenant easement exists, the owner of the servient tenement will have to pay all the cost of providing the alternate route to the dominant tenement, if the new route has to pass over a third party land which he does not own. An appurtenant easement cannot be extinguished or revoked when the servient tenement changes hands either through sale, or transfer. It must be included in the will of the owner, so that his inheritors are made aware of their obligations to the dominant tenement.
Easement ‘In gross’
An easement in gross is a type of easement which benefits the holder of the easement personally without his having to own land within the vicinity of the easement. The grant of easement in gross could be to an individual person, or a corporate body. For example if you have trees on your land you can grant an easement to someone who wants to use them for timber. The person so favored is said to hold an easement in gross on your land, for the specific purpose of felling the trees, and converting them to his personal use. After such a holder of the easement in gross has completed his assignment of felling the trees on your land, you can terminate his easement in gross. This is a personal easement in gross. You can also grant an also grant an easement in gross to a corporate body or a municipality for example the construction and maintenance of a highway or a rail line.
A more common example of easement in gross is the right of public utilities to use part of your land to for installation of their equipments. You must also grant them the right of access to service these equipments, and carry out maintenance on them. The right of public utilities to easement in gross on your land cannot be terminated because these utility companies hold their easement in gross for the public good, which overrides your personal convenience. Examples of public utilities which hold permanent easements in gross are public electricity companies, gas companies, and public water supply companies. These companies hold their easements in gross in perpetuity, and their right of way cannot be abridged. Their agents have free access to these facilities by the right of way granted to them by their easement in gross. You cannot legally deny workers of these utility companies free access to their easement in gross. Also you cannot legally remove electricity poles from your land or dig up gas and water pipes installed by the appropriate public utility companies on your land.
Easement by Necessity
Easement by necessity is a type of easement granted to a person or corporate body out of absolute necessity. As an example, a piece of real estate property may not have direct access to a highway or source of water. An easement by necessity may be granted to the landlocked property so that it can have access to the highway or source of water. All occupants of such a landlocked real estate will now be able to access the highway or source of water by the deed of easement by necessity. Visitors to the landlocked estate can also access the estate through the easement by necessity granted to it.
However, the easement by necessity may be temporary and can be terminated or revoked if the necessity which gave rise to it in the first place no longer exists. If in the example given above, a new highway is constructed to which the land locked real estate now has direct access, the original ease by necessity can be revoked, since the necessity to have access to a highway no longer exists. Similarly, if an alternative source of water becomes available to the landlocked estate, the easement by necessity granted to access the first source of water is no longer absolutely necessary. Therefore the easement by necessity granted to the real estate to access a source of water can then be terminated.
Easement by prescription
Easement by prescription differs markedly from the other types of easements, because of how it is created. An easement by prescription can be claimed by someone who has been using a piece of real estate land for a particular purpose over a period of time, even though he does not have a title to the real estate property; nor had he obtained prior permission from the rightful owner before he commenced use of the land for his personal purpose. The mere fact that he had occupied the land for a considerable time, and used it for a purpose evident to the public; may be enough to grant him an easement by prescription. This claim to long-time usage is recognized in common law, and he can continue to use the land for the particular purpose which he had used it over time.
Easements by prescription are implied easements and do not require rigorous proof in law like the other types of easements. All a holder of an easement by prescription is required to prove is that he has occupied the piece of land continuously for a period prescribed by law. The period of continuous uninterrupted occupation varies from five to thirty years, depending on local laws which vary from one state to another. Once this legal requirement is met, he can continue to use the land for that same purpose indefinitely. However, if before the prescribed period of occupation is reached, the legal owner of the land assets his rights, the easement by prescription can be terminated.
Termination of Easements
Easements can be terminated in a number of ways which include:
* Unity of ownership or merger of both Dominant tenement and Servient tenements:
An easement on a real estate property can be terminated if the owner of the servient tenement acquires ownership of the dominant tenement. He can thus merge his two adjoining properties into one continuous whole. With the merger of both servient and dominant tenements, the real estate property owner now holds easement to his own property; and hence is not beholden to anyone else with respect to use of any part of his merged property. In both the letter and spirit of the law, the easement stands terminated.
* Valid written release of the easement by the owner of the dominant tenement.
The holder of an easement on a piece of real estate which adjoins their own dominant tenement can terminate the easement by delivering a validly written release of easement to the owner of the servient easement. By this action the dominant tenement has terminated the easement it holds on the servient tenement.
An owner of a dominant tenement can cause the easement he holds on a servient tenement to lapse and thus have it terminated, if he fails to use his right of access to the servient tenement continuously for a long period of time as specified by law. He has thus abandoned his easement, and the easement is thus considered terminated.
The laws of easement are in two broad categories: Public easement and private easement. The public easements are governed by acts of state and federal legislatures and are irrevocable except by amendments to the legislative acts by parliament. Private easements on the other hand can be made and revoked by mutual agreement between the two parties to the easement. While negotiating purchase of real estate property, one needs to carefully consider the effect of subsisting easements on the real estate before committing oneself to the final purchase.
1. Everhart, Marion E: Everhart on Easements, Todd Publications (June 1981)
2. Jackson, Paul: The law of easements and profits, Butterworth (1978)
3. West Virginia Limiting Liability of Landowners Act
West Virginia Code – Chapter 19, Article 25-1 through 25-5
Laws of the Department of Agriculture
4. Wilson, Donald A. Easements and Reversions, Landmark Enterprises (June 1, 1992)