Common Types of Easements

Instructor: Deborah Miller

Deborah is a licensed Real Estate Broker. She has a Post Master's Certificate in college teaching with all but the dissertation of her doctorate in philosophy complete.

How land is used can result in the creation of an easement. Easements often are created to allow use or access to another person's land and can result in the loss of landownership rights. In this lesson, you will learn about common types of easements, some of which benefit both landowners and others that benefit the easement holder.

What is an Easement?

Real property consists of land and buildings. Real property ownership is fee simple absolute, the highest possible form of ownership interest. This ownership allows for possession, use, and transfer rights over tangibles (like land, buildings, or water) and intangibles (like air and mineral rights) from one owner to another. Real property rights also may include ownership rights to interests in land owned by others.

An easement is an interest in land of limited nonpossessory legal right to use another's land for a specified purpose. The easement can be 'affirmative' or 'negative' depending on its use. Affirmative easements are the most common. They allow privileged use of land owned by others. Negative easements are more restrictive. They limit how land is used. A negative easement may restrict landowner development rights, whereas affirmative easements allow 'access' and 'right-of-way'. An easement may be granted or expressly conveyed in a deed or other written instrument such as a contract or will. It can also be implied from use of the land or acquired by court action, and created to allow personal access and use of the land. It can be restricting on how land is used, or beneficial to the easement holder.

The easement holder is entitled to privileges of protected use and limited enjoyment of the land. You might ask, 'why should I allow use of my land?' Well, there are several reasons. The creation of an easement is dependent upon the purpose intended. Most benefit the easement holder. The type of easement created depends on how interest in land is acquired, what may be implied from land-use that may impact its value, and for what purpose is the easement intended.

Public railroad companies are able to lease, license, or improve property in existing railway right-of-ways
Public railroad companies are able to lease, license, or improve property in existing railway right-of-ways.

What Is the Intended Purpose of an Easement?

Most commonly, easements are created from a need to access land. Like the cable repairman who might access your property to fix cable, access easements are used to cross another's land. The right-of-way is a common type of access easement used to enter or exit another's land. You are likely familiar with cable companies that use right-of-ways like easement-in-gross to service and maintain utilities and cable across another's land. You are less likely familiar with railway right-of-way, a subject of dispute for many landowners in states that use private property for public railroad service and maintenance. More specifically, public railroad companies in some states are able to lease, license, or improve property in existing right-of-ways despite that right-of-way being only an easement. Normally, the landowner grants the easement holder an easement-in-gross. Railroad companies are the exception. When a landowner grants a railroad company an easement-in-gross, the railroad company can grant a utility company an easement-in-gross to service and maintain railroad property within the boundaries of the railway right-of-way easement.

How is Interest in Land Acquired?

Easement rights are usually acquired through voluntary alienation, the intentional transfer of real property rights. Such easements are granted by deed or written instrument or created by contract through mutual agreement, expressed in writing or implied by action. An easement expressly conveyed by instrument (like a deed) shall describe the land, identify the easement, and be recorded. If not expressed, the creation of an easement may be implied from how land is used or acquired. When some or all ownership rights of the landowner are acquired through court action, involuntary alienation occurs. This results in the landowner losing some use of their property rights to the easement holder. In this way, an easement may be acquired through involuntary alienation by prescriptive use, the routine adverse use of another's land.

Know your boundaries and inspect your property to preserve your ownership rights.
Easement Appurtenant

What May Be Implied from Land Use?

How land is used by a trespasser can result in the creation of an easement. If a trespasser routinely uses your land as a pathway to a park for a certain period of time, what may be implied from use of the land is a right to use an easement. A prescriptive easement is created from adverse use of another's land that is uninterrupted, open, hostile, and continuous for a statutory period of time. Encroachment is a trespass created from the intrusion of real property that extends beyond property boundaries onto another's land. Unlike the party wall, a common wall that borders property boundaries maintained mutually by both landowners, an encroachment extends beyond the property boundaries onto another's land. A branch that extends from a neighbor's tree is an encroachment on your land.

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