EASEMENT–MEANING AND TYPES

An easement is a non-possessory right to use or enter the property of another person.

An easement gives a person the right to go through the land of someone else and can be granted to anyone including private companies, government agencies, and neighbors.

Although easement holders have access to a property, he does not own the property.

The legal owner of the property retains the ownership of the property.

When it comes to the land, easement holders do not have the same rights as the property owners.

They can't prohibit others from using the land in the same way the property owner may.

An example of an easement would be a property owner who allows his neighbor to use their private road for navigation.

Easements exist in different forms, let look at some of them.

1. Prescriptive easement: This is an easement that arises from using someone else property for a legally defined period, without the consent of the owner.

For example, a neighbor who built a fence on your property may be granted prescriptive easement if the fence remains in place for longer than the time allowed by states laws.

2. Negative easement: This kind of easement places a restriction or limitation on what a property owner can do with his/her property.

For example, a negative easement may require that a property owner maintain a tree for the benefit of his neighbor.

The property owner cannot cut down the tree as long as the easement is in existence

As another example, a negative easement may force a property owner to preserve a fence for the benefit of his neighbor and the property owner must preserve the fence for the duration of the easement.

3. Easement by necessity: As its name seems to suggest,  an easement by necessity is created by law out of necessity.

An easement by necessity is granted when:

  • the only logical and practical way to access one's property is through a neighbor's property.
  • The court determines the easement is necessary for the use of the land.
An easement by necessity will be canceled if a new way of accessing the property becomes available in the future or the necessity for such easement no longer exists.

An easement obtained from landlocked land is an example of easement by necessity. Landlocked land is land surrounded by other neighbor property and has no access to a public road.

By nature, the landlocked landowner has an easement of necessity because he cannot access his property without passing through his neighbor's property.

4. Utility easement: This is an easement that allows a utility company to use a piece of a property near a utility facility to install,  repair, and maintain the utility facility.

A utility easement gives utility companies the right to build electric poles, water pipelines, cable lines on the property of someone else.

As an easement holder, a utility company may perform some action that is necessary for the property functioning of their operation. 

A utility company, for example, can cut down a tree on your property that is interfering with an underground pipeline.

TYPES OF EASEMENT

Broadly speaking, we can categorize easement into two types

1. Appurtenant easement: in real estate terminology, an appurtenant is something immovable or fixed to a property.

Therefore, an appurtenant easement is one in which the right to use is permanently tied to the property.

An appurtenance easement benefits the holder and generally runs with the property.

That is, when a property's title is transferred to a new owner, the appurtenances easement is transferred as well.

Generally, an appurtenance easement affects two parties: dominant estate and servient easement.

The dominant estate (or dominant tenement) is the property that benefits from an easement while the servient estate ( or servient tenement)  is the property that is burdened by the easement since it serves the dominant estate.

2. Easement in gross: This is an easement that does not necessarily run with the land.

That is to say, the easement holder has the personal right to use the property but that right does not pass to the next owner.

In other words, if the property is sold or transferred through inheritance, the easement is terminated

The difference between easement in gross and appurtenances easement is an easement in gross is attached to a person rather than the property

An example of easement in gross would be a situation when James grants Daniel access to his property to farm. For as long as James consented, Daniel would continue to use the property to farm.

However, if James sells the property, Daniel's easement becomes void unless the new owner grants him a new one.

Before we conclude, we must distinguish between appurtenance easement and easement in gross.

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1. While an appurtenance easement is attached to a property, an easement in gross is attached to an individual.

2. An appurtenance easement is transferable whereas an easement in gross is not transferable

3. While an appurtenance easement has dominant and servant easement, an easement in gross does not have a dominant estate. That is, only servient estate exists in an easement in gross.

That will be all for now. As usual, we will be looking forward to hearing from you in the comment box 😂.

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