Many of us have heard of the term “easement”, and we may even have use of a neighboring property for one reason or another, but the concept of easements and how an easement is created can be confusing. Outlined below are the basics you should know.
Real property law defines an easement as “the grant of a non-possessory property interest that entitles in its holder, called the ‘dominant estate’, to some form of use or enjoyment of another’s land, called the ‘servient estate’.” In simpler terms, an easement is a right of one party to cross or otherwise use another party’s land for some specified purpose, such as for railroads, utility lines, and gas pipelines. An easement can be perpetual or for a limited period of time.
An easement requires at least two parties. The person who has the right to cross or use someone else’s land for some specified purpose, or the person who benefits from the easement, is called the “easement holder” or “dominant estate”. The person whose land the easement holder is crossing or using for a specified purpose is called the “servient landowner”. An easement can “run with the land” or be just to specific people.
Easements create an enforceable legal right to use the property owned by another person. An easement does not allow the easement holder to occupy the land or exclude others from using the land, other than may be granted with the easement or may be necessary to use the easement. The servient estate landowner may continue to use the land in any way he or she sees fit and may, subject to right of the easement holder to enforce the easement.
The most common form of an easement is called an “affirmative easement”, or the right to do something on another’s land. An affirmative easement could be anything from the right to swim in your neighbor’s pond, to the right to cross another’s land with your farm equipment or livestock, to the right to construct and maintain a driveway over a neighboring parcel in order to access your property.
There are also “negative easements”, which enable the easement holder to prevent the servient landowner from doing something that would otherwise be permissible. For example, the owner of Parcel A may hold a negative easement that prohibits the owner of Parcel B from constructing a barn or planting a row of trees that obstructs the owner of Parcel A’s view of the river.
An easement is either “appurtenant” or “in gross”. An easement appurtenant is one that benefits the easement holder and his or her land. An easement appurtenant generally runs with the land, which means that any subsequent owner of the property will also benefit from the easement. The right to cut across your neighbor’s field to access your property is considered an easement appurtenant. Conversely, an easement in gross is an easement that benefits an individual or legal entity without benefiting the easement holder’s land. Railway easements, utility easements, or an easement held by a company to place a billboard on your property are all examples of easements in gross.
An affirmative easement can be created in several different ways, but the most common – and recommended – way to create an affirmative easement is through an express grant, which requires a signed writing by the grantor of the easement. An express easement may be granted in a deed or other legal document that describes the real property over which the easement is granted and which typically contains the parameters of the specified use. The easement is then recorded with the appropriate county recorder’s office.
An affirmative easement generally passes to any subsequent owner of the property until such time as the easement is terminated. The language of an the easement should state whether it is perpetual or temporary, and should also provide details as to how the easement can be terminated in the future. Many easement disputes can be avoided entirely or more easily resolved if the language of the easement is clear. For this reason, all easements should be drafted by a qualified real estate attorney.
If you have easement-related questions, you can call our office at (507) 288-5567 to schedule an appointment or use our online booking system by visiting www.wardoehler.com/book-online.
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