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Easement
This article is manifestly incorrect outside
of US law.
An easement is the right of use over the real
property of another. The right is often described as the right to
use the land of another for a special purpose. Unlike a lease, an
easement does not give the holder a right of "possession"
of the property, only a right of use. It is distinguished from a
license that only gives one a personal privilege to do something
on the land of another. An example of a license is the right to
park a car in a parking lot with the consent of the parking lot
owner. Licenses in general can be terminated by the property owner
much more easily than easements. This is different although similar
to a wayleave, despite the fact that a search for wayleave links
to this article.
Easement concepts differ substantially from
country to country, and in the U.S. from state to state. Historically,
it was limited to the right-of-way and rights over flowing waters,
although this is no longer true. Traditionally, it was a right that
could only attach to an adjacent land and was for the benefit of
all, not a specific person, also this is also no longer true.
Contents
* 1 Public easements versus private easements
* 2 Appurtenant easements compared to easements in gross
* 3 Dominant tenement versus servient tenement
* 4 Profits
* 5 Creation of easements
* 6 Implied easements versus express easements
* 7 Easements taken by the government
* 8 Examples of easements
* 9 Trespass upon easement
* 10 Easement by necessity
* 11 Restrictive easement
* 12 Easement by prescription
* 13 Easement in gross
* 14 Torrens title registration
* 15 See also
* 16 External links
Public easements versus private easements
Easements may be considered public or private.
A private easement is limited to specific individuals or entities
such as the owner of an adjoining land. A public easement is one
that grants the right to a large group of individuals or to the
public in general, such as the easement on public streets and highways
or of the right to navigate a river.
Appurtenant easements compared to easements
in gross
In the U.S., an appurtenant easement is one
that belongs to the owner of the land that benefits from the easement,
as compared to an easement in gross that is personal to holder of
the easement and does not pass automatically to another person when
the easement holder's property is sold and bought.
Dominant tenement versus servient tenement
Typically, an easement involves two tenements,
i.e., parcels of land. There is the dominant tenement, which is
the plot of land to which the benefit an appurtenant easement is
attached. Second, there is the servient tenement, which is the plot
of land which bears the burden of the easement.
Profits
A profit is a special type of easement that
permits the profit-holder to come onto the property of another and
remove, for example, fruits, vegetables, and "fugacious minerals"
(minerals that tend to be movable) such as gas or oil; by comparison,
coal, which does not move, would not be considered a fugacious mineral.
The rights of the profit-holder depend on the document that created
the profit.
Creation of easements
Easements may be created in a number of ways.
In most of the United States, using someone else's property, for
example, for ingress and egress over a certain number of years,
regularly and without the consent of the property owner, can give
the user the right to continue using the property for the same purpose
for as long as the user wishes. This method of acquiring an easement
is called a "prescriptive easement" or "easement
by prescription."
In the United States, "prescriptive easement"
cannot be used to acquire the right to protect a view over a neighboring
property no matter how long a property owner has had a view over
the neighbor's property. This concept, known as "ancient lights"
in some common law jurisdictions, is not recognized in any U.S.
state.
The concept of acquiring rights in other people's
property without their permission, merely by use, is also important
in "adverse possession," informally called "squatters'
rights". However, adverse possession is a means of acquiring
the legal title to property not merely the right to use it. In many
U.S. states, additional requirements apply to adverse possession.
For example, in some states, acquiring title by adverse possession
requires exclusive use of another person's property for at least
five years, payment of all property taxes on the property for those
five years, and "open, notorious, hostile, actual, and exclusive"
possession of the property for those five years. Adverse possession
is a more complicated topic.
Implied easements versus express easements
An easement may be implied or express. An express
easement may be "granted" or "reserved" and
is typically included in a document such as a deed or other officially
recorded document, or incorporated by reference to a subdivision
plan by "dedication", or in restrictive covenants in an
owners' association agreement.
Easements taken by the government
Easements may be acquired by the government
using its power of "eminent domain" in a "condemnation"
proceeding in the courts. Note that in the U.S., in accordance with
the Fifth Amendment to the U.S. Constitution, property cannot simply
be taken by the government unless the property owner is compensated
for the fair market value of what is taken. This is true whether
the government acquires full ownership of the property ("fee
title") or a lesser property interest, such as an easement.
Examples of easements
Easements include:
* Aviation easement. The right to use the
airspace above a specified altitude for aviation purposes. Also
known as avigation easement, where needed for low-altitude spraying
of adjacent agricultural property.
* Railroad easement.
* Utility easements including:
o Storm drain easements. These carry rainwater to a river or other
body of water.
o Sanitary sewer easements. These carry used water to a sewage treatment
plant.
o Electrical power line easements.
o Telephone line easements.
o Fuel gas pipe easements.
* Sidewalk easements. Usually sidewalks are in the public right-of-way,
but sometimes they are on the lot.
* Solar easements. Prevents someone from blocking the sunlight.
* View easements. Prevents someone from blocking the view of the
easement owner, or permits the owner to cut the blocking vegetation
on the land of another.
* Driveway easements, also known as easement of access. Some lots
do not border a road, so an easement through another lot must be
provided for access. Sometimes adjacent lots have "mutual"
driveways that both lot owners share to access garages in the backyard.
The houses are so close together that there can only be a single
driveway to both backyards. The same can also be the case for walkways
to the backyard: the houses are so close together that there is
only a single walkway between the houses and the walkway is shared.
Even when the walkway is wide enough, easements may exist to allow
for access to the roof and other parts of the house close to a lot
boundary. To avoid disputes, such easements should be recorded in
each property deed.
* Beach access. Some jurisdictions permit residents to access a
public lake or beach by crossing adjacent private property. Similarly,
there may be a private easement to cross a private lake to reach
a remote private property, or an easement to cross private property
during high tide to reach remote beach property on foot.
* Dead end easement. Sets aside a path for pedestrians on a dead-end
street to access the next public way. Could be contained in covenants
of a homeowner association, notes in a subdivision plan, or directly
in the deeds of the affected properties.
* Recreational easements. Some U.S. states offer tax incentives
to larger landowners if they grant permission to the public to use
their undeveloped land for recreational use (not including motorized
vehicles). If the landowner posts the land (i.e., "No Trespassing")
or prevents the public from using the easement, the tax abatement
is revoked and a penalty may be assessed. Recreational easements
also include such easements as equestrian, fishing, hunting, hiking,
biking and other such uses.
* Conservation easements. Grants rights to a land trust to limit
development in order to protect the environment.
Trespass upon easement
Blocking access to someone who has an easement
is a trespass upon the right of easement and creates a cause of
action for civil suit. For example, putting up a fence across a
long-used public path through private property may be a trespass
and a court may order the obstacle removed. Turning off the water
supply to a downhill neighbor may similarly trespass on the neighbor's
water easement.
Open and continuous trespassing upon an easement
can lead to the extinguishment of an easement by prescription (see
below), if no action is taken to cure the limitation over an extended
period.
Easement by necessity
Similarly, parcels without access to a public
way may have an easement of access over adjacent land, if crossing
that land is absolutely necessary to reach the landlocked parcel.
There is an implied easement arising from the original subdivision
of the land for continuous and obvious use of the adjacent parcel
(e.g., for access to a road, or to a source of water). This easement
is extinguished upon termination of the necessity (like if a new
public road is built adjacent to the landlocked tenement). An easement
by necessity is distinguished from an easement by implication in
that the former easement arises only when "strictly necessary,"
whereas the latter can arise when "reasonably necessary."
However, the landlocked owner might be required
to obtain a license for a new commercial use or to cause damage
during access (e.g., a logging road or blazed trails). Some states,
also, frown on granting easements by necessity when the need was
created by the owner's own actions, say, by selling off plots of
land resulting in a landlocked parcel.
Some U.S. state statutes grant a permanent
easement of access to any descendant of a person buried in a cemetery
on private property.
Restrictive easement
Restrictive easements are also called "negative
easements," as their "use" is normally prohibitive,
such as a common "non-vehicular access" easement as shown
along a main thoroughfare where the governmental entity needs to
restrict access. Therefore a restrictive easement is a condition
placed on land by its owner or by government that in some way limits
its use, usually regarding the types of structures which may be
built there or what may be done with the ground itself. For instance,
if a leased piece of land is not precluded by zoning laws (probably
because it is not in a township) from having people inhabit it,
and the government feels that for some reason living there would
be especially unsafe, it may place a restrictive easement on the
property stating that no one may live there. Restrictive easements
are also frequently placed on wetlands (i.e., a conservation easement)
to prevent them from being destroyed by development.
Another type of restrictive easement is an
historic preservation easement in which the owner of an historic
structure agrees not to change specified historic elements of the
facade.
The primary difference between location preservation
ordinances and historic preservation easements is that local ordinances
are discretionary and can be removed and a historic preservation
easement runs with the property forever.
The value of easements imposed on historic
properties already protected by local ordinances has recently been
the subject of discussion by some people who have claimed that “where
the subject property is located in a local historic district in
which there are existing restrictions, regulations and controls,
the terms of the easement are substantially redundant.”
Easement-encumbered properties within local
historic districts should sell at a penalty relative to unencumbered
properties in such districts because the easement typically imposes
stricter controls than those contained in the usual preservation
ordinance.
Easements often prohibit changes in property
use or changes to significant architectural features while ordinances
may permit such changes, subject to review and approval by a board
of architectural review.
Further, unlike preservation ordinances, the
easement typically contains no relief for "economic hardship"
commonly found in governmental regulation of land use.
Easements are granted in perpetuity while historic
district ordinances and local zoning practices change over time
to reflect the dynamics of a changing political and/or economic
interests of a community. An easement on an historic urban property
is generally intended to preserve and conserve the historic, architectural,
scenic and cultural values of a certified historic structure.
An easement donation reduces the basis in subsequent
years by a fraction equal to the ratio of the value of the easement
donation divided by the value of the property just before the easement
donation takes place. This Basis Adjustment will cause a reduction
from the owner’s depreciation schedule and or increase one’s
capital gain upon sale of subject property.
Easements provide for judicial extinguishment
in the event the historic structure is destroyed. The proceeds from
the extinguishment are prorated at a fraction equal to the ratio
of the value of the easement donation divided by the value of the
property just before the easement donation takes place, and paid
to the easement holding organization (not the landlord).
In the case of properties located in registered
historic districts, the easement will also protect the historic
district through limitations on uses that might jeopardize the architectural
scale, style and sense of cultural identity of the district. The
easement does this by restricting alteration and modification of
the property in ways that would change its historic appearance or
remove or replace historic building fabric. Such an easement typically
contains provisions:
1) Prohibiting demolition.
2) Prohibiting or severely limiting subdivision.
3) Prohibiting or limiting further construction
or development. Depending upon the property, the easement may also
prohibit or limit use changes.
4) Prohibiting changes to exteriors (and on
occasion interiors) of historically or architecturally significant
buildings depending upon their significance, barring changes to
facades visible from public ways or prohibiting changes without
prior review by the holding organization.
5) Typically, easements on significant historic
buildings will regulate changes to all facades, regulate how historic
materials are replaced or repaired, prohibit or regulate placement
of commercial or other signs and prohibit changes inconsistent with
the building's historic character.
6) Requiring maintenance in conformity with
agreed standards, typically those set by the US Department of Interior,
to protect the historic structure.
7) Maintenance in excess of that ordinarily
anticipated for comparable structures is typically required.
8) The cost of conducting "interruptive
maintenance" out of the ordinary building maintenance cycle
to correct what, in economic terms, are relatively minor defects
(such as repainting or repair of deteriorated brickwork, cornices
or window elements more frequently than would be required by market
conditions) must be considered.
9) Requiring the owner to keep the property
fully insured against casualty loss and to reconstruct improvements
if they are destroyed. Again, not all preservation easements require
the owner to insure the property or to replace it in the event of
casualty.
10) Prohibiting dumping of trash.
11) Allowing for certain rights held by the
holding organization, including periodic inspection, review and
enforcement rights.
12) On structures within historic districts
provide that any replacement structure must be constructed according
to design plans approved by the easement holder.
Easement by prescription
Easements by prescription, also called prescriptive
easements, are implied easements that give the easement holder a
right to use another person's property for the purpose the easement
holder has used the property for a certain number of years, which
varies from state to state. Prescriptive easement doctrine is not
the same as adverse possession doctrine, which allows someone to
acquire ownership of the title to a property by asserting possession
of the property for the legally required period; in some states,
additional requirements apply. For example, in California, the adverse
possession statute requires the "adverse possessor" to
assert possession of the property AND pay all property taxes for
at least five years. Prescriptive easements are a type of implied
easement, in that they arise even though they are not expressly
created or recorded. Unlike other implied easements, however, prescriptive
easements are hostile (i.e., without the consent of the true property
owner). Prescriptive easements do not convey the title to the property
in question, only the right to utilize the property for a particular
purpose. They often require less strict requirements of proof than
fee simple adverse possession.
Once they become legally binding, easements
by prescription hold the same legal weight as written or implied
easements. Before they become binding, they hold no legal weight
and are broken if the true property owner acts to defend his ownership
rights. Easement by prescription is typically found in legal systems
based on common law, although other legal systems may also allow
easement by prescription.
Laws and regulations vary among local and national
governments, but some traits are common to most prescription laws.
Generally, the use must be open (i.e. obvious to anyone), actual,
continuous (i.e., uninterrupted for the entire required time period),
and adverse to the rights of the true property owner. The use also
generally must be hostile and notorious (i.e., known to others).
Unlike fee simple adverse possession, prescriptive easements typically
do not require exclusivity.
The period of continuous use for a prescriptive
easement to become binding is generally between 5 and 30 years depending
upon local laws (usually based on the statute of limitations on
trespass). Generally, if the true property owner acts to defend
his property rights at any time during the required time period
the hostile use will end, claims on adverse possession rights are
voided, and the continuous use time period resets to zero.
In some jurisdictions, if the use is not hostile
but given actual or implied consent by the legal property owner,
the prescriptive easement may become a regular or implied easement
rather than a prescriptive easement and immediately becomes binding.
In other jurisdictions, such permission immediately converts the
easement into a terminable license, or restarts the time for obtaining
a prescriptive easement.
Government owned property held for common use
is generally immune from prescriptive easement in most cases, but
some other types of government owned property may be subject to
prescription in certain instances.
Prescription may also be used to end an existing
legal easement. For example, if a servient tenement holder were
to erect a fence blocking a legally deeded right-of-way easement,
the dominant tenement holder would have to act to defend his easement
rights during the statutory period or the easement might cease to
have legal force, even though it would remain a deeded document.
Right-of-way for access is among most common
easement by prescription.
Easement in gross
An easement in gross is one that is attached
to an individual person or legal entity rather than a parcel of
real estate served by the easement. This easement can be personal
(like an easement to use one's boat ramp) or commercial (like an
easement given to a railway company to build and maintain a rail
line across one's property) in nature. In earlier times, easements
in gross were considered neither assignable nor inheritable, but
today, most courts hold that commercially-oriented easements in
fee are freely alienable. See also Profit-a-Prendre.
Torrens title registration
Under the Torrens title registration system
of land ownership registration, easements and mortgages are recorded
on the titles kept in the central land registration or cadastre.
Any unrecorded easement is extinguished and no easement by prescription
or implication may be claimed.
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