Types Of Easements In Real Estate
Types of Easements
The legal right to use another person’s property for a certain purpose refers to an easement. Some people might not have heard the term yet but if you’re a person who’s using someone else’s property for a reason, chances are you were able to come across the word previously and you just didn’t know that it’s called an easement.
For example, driving through someone else’s land, electrical lines running over private property or burying a gas pipeline across an individual’s land. An easement, in layman’s term, is a right to trespass. If a person is granted by an easement, he or she can use the property but the title of the property remains with the real property owner.
Easements are typically made using a written document. They can be through a will, an act, a contract or any other form of agreement. It is necessary to have conveyance formalities for the easement to be enforceable by law. On the other hand, easements can also be imposed through a court of law or adverse possession.
The easement holders don’t share the same rights with the property owner. They are not allowed to occupy the property or prevent others from using it unless other users of the property interfere with the easement’s purpose. Contrary to this, the owner of the property may use the easement and have all the rights to prevent others from using the property except the easement holder.
There are several types of easements. But three of them are most likely encountered by many. Here are some of the most common:
The word appurtenant means “attached to.” An easement appurtenant is a type of easement that usually appears in situations where two landowners seek to use adjoining part of a property. For example, a 1000 square meter lot is landlocked from the eastern road. However, the easement appurtenant enables the owner to get access to his land by driving across the adjacent frontage parcel. Another example would be home on a landlocked property where the owner needs an easement appurtenant to cross a neighbor’s lot. This allows the owner to reach the destination which is the main road or surrounding area.
The property that benefits from the easement is called the dominant tenement. Meanwhile, the property over which the easement passes or burdened by the easement is known as the servient tenement. An easement appurtenant is attached to the dominant tenement’s ownership. Once the dominant tenement is sold, the easement appurtenant will then pass to the new owner. The servient tenement will stay as subject to the easement once it is sold. Easement appurtenant can be created once the landlocked parcel’s owner can provide evidence in court about the existence of common ownership in one of the adjoining parcels that have public access.
A prescriptive easement is a legal concept that gives a person the right to use another person’s property without permission. The easement occurs if the property is used in an actual, open, continuous and uninterrupted number of years as specified by the law of the state. For example, a fence was built on the wrong side of a boundary line about several feet. If all requirements are met by the hostile user including the required number of years, the permanent prescriptive easement is given for that particular portion of the land.
The hostile use is not necessary to be exclusive as this easement can be shared with the legal owner to the other hostile petitioners. This easement needs to be clear to the two parties, especially to the property owner where the easement happens. A prescriptive easement is permanent and will last through the possession of easement even if the holder decides to sell the property. The easement will be given to the new owner, and have the same right as the previous owner.
This type of easement is a legal right that allows another person to use the land for as long the land is owned by the owner or if the easement holder is gone. Simply, an easement in gross possesses a right to an individual or entity more than the property. The main difference in this type of easement among others is the inability to transfer the property to the new owner once sold. The new owner may attempt to create a new easement in gross but granting it is not guaranteed.
For example, Tamara is a homeowner that has an easement in gross with her neighbor. This allows her to pass through the neighbor’s woods to reach the property. Once Tamara decides to sell the property, there is no guarantee that the rights in the easement in gross will be transferred to the new owner. An easement in gross is not tied to the land. It is the holder’s personal right to have given access to another’s property. That does not depend on the dominant tenement’s ownership. An easement in gross needs to be documented to give protection to the parties involved. Documenting the easement and specifying the scope and length of the easement can help avoid any potential misunderstandings in the future.
The above mentioned types of easements have different usage and purpose. As what other real estate lawyers say, easements tend to be the reason of some legal disputes. Usually, the main argument is whether the use of a certain easement is reasonable. But easements can often be negotiated. As a general rule, the holder of an easement is given the right to do “whatever is necessary to enjoy the purpose of the easement,” as long as it won’t give an unreasonable burden to the servient tenement. Likewise, the servient tenement owner may use the property that does not improperly intervene with the holder’s use of the easement. The undue burden can be constituted depending on the pieces of evidence of various cases.
Still have questions in regards to types of easements? We have a special section in our members section where you can take practice tests until you are comfortable with the types and know them well.