Easements

An easement is a nonpossessory, irrevocable legal interest in another party’s land, usually that of a neighbor. The easement holder has only the right to a specific, limited use or enjoyment of the real estate of another and the easement may not interfere with the property owner’s rights. Common easements include the rights to pass through adjoining land to access your own parcel; to run utility lines across adjoining land; or to otherwise use the land in some other way such as parking, hunting or gardening. Significantly, without an easement, such use of your neighbor’s land would be considered trespass in most circumstances.

The servient estate is the land subject to or burdened by the easement and the dominant estate is the property that benefits from the easement. Often the value and use of the dominant estate depend upon the existence of the easement, such as when, for example, the only way to access your land is by using a right-of-way easement over your neighbor’s property.

Maintenance

The duty to care for an easement belongs to the owner of the dominant estate. Thus, any costs of repair or maintenance related to the easement fall to the user of the easement, not to the owner of the servient estate. However, the parties may enter into an agreement that the servient estate owner would be liable for improvements.

Creation

Most commonly, an easement is established by an express grant, usually by specific description in a land deed. Less often, another type of legal document such as a will, mortgage or plat may include language that expressly creates an easement. Other ways to obtain easements include by implication, by adverse possession or by estoppel.

Legal Problems

Not surprisingly, when two neighboring landowners have a legal relationship concerning an easement, it is not uncommon for legal issues to arise, including:

• Where are the physical boundaries of the easement?
• Who is liable for upkeep?
• What are the limits of the easement holder’s rights?
• Is the easement permanent or temporary?
• Does the easement attach to the adjoining benefited land (appurtenant easement) such that it passes to subsequent landowners or does the easement actually only attach to particular persons (easement in gross)?
• What are the easement holder’s remedies if the servient-estate owner obstructs the easement?
• What if the easement holder damages the servient-estate property when using the easement?
• What if the language granting an easement in a legal document is ambiguous?
• Has the easement been abandoned?

Protect Your Rights

If you are either the easement holder who depends on the easement to enjoy or use your property, or the owner of the servient property subject to an easement, important legal questions may arise surrounding the easement. Do not hesitate to contact an experienced real estate attorney as soon as possible if an easement dispute develops. It can also be prudent to discuss the particular aspects of an easement with your lawyer before any conflict occurs in order to avoid potential problems. Additionally, real estate law varies from state to state, so you should understand the particular law of your jurisdiction as it applies to your easement issue.

Your First Appointment With a Real Estate Attorney

To read and print out a copy of the checklist, please follow the link below.

Your First Appointment With a Real Estate Attorney

You can download a free copy of Adobe Acrobat Reader here.

Copyright © 2008 FindLaw, a Thomson Reuters business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.