What is an Easement? - Definition & Rights

Instructor: Shawn Grimsley

Shawn has a masters of public administration, JD, and a BA in political science.

If you own a piece of real estate, it probably has at least one easement burdening it. In this lesson, you'll learn what an easement is and discover its characteristics and related rights. A short quiz follows the lesson.

Easement Defined

If you own a house in a city or suburb, the real estate is almost certainly encumbered by an easement. An easement is a nonpossessory interest (i.e., a property right held by someone who does not hold legal title to the property) to use a parcel of real estate for a certain purpose. Basically, someone -- or some company -- has the right to come onto your property and use it in some way. Why would someone have this right? Let's look at some examples.

Let's say you own a house on a residential lot in a typical city. Your lot almost certainly is encumbered by one or more utility easements allowing utility companies to lay and maintain power lines, water lines or sewer lines. Easements aren't restricted to urban property owners, either. We can see easements encumbering isolated parcels out in the country where an owner of a parcel of property has an easement to travel over an adjacent parcel owned by someone else, which is called a right of way.

An easement can be created by express grant, by reserving an easement when you grant property, through implication or through prescription. Easements by prescription and implication are easements recognized by law if certain conditions are met and don't require the express consent of the owner of the property being burdened by the easement. We'll take a much deeper look at each of these methods of creation in another lesson. For now, let's look further into different types of easements.

Dominant & Servient Estates

Many easements involve a dominant estate (also called a dominant tenement) and a servient estate (also called a servient tenement). The servient estate is the land that is burdened by the easement -- it 'serves' the dominant estate. The dominant estate is the land that benefits from the easement -- it dominates the servient estate.

For example, let's say that you buy an easement from your neighbor for a driveway easement because you need a bit more land than you have to construct a driveway that will accommodate a vehicle. The easement allows you to use the relevant strip of your neighbor's land as a driveway. Your property is the dominant estate because it benefits from the easement, and your neighbor's property is the servient estate because it is burdened by the driveway easement.

Affirmative v. Negative Easements

Easements can be affirmative or negative. An affirmative easement is one that gives the servient estate the right to enter onto the dominant estate to make some use of it. Our driveway easement is an affirmative easement, meaning your neighbor could still come onto your driveway that is on their property. A negative easement, on the other hand, prohibits the owner of the servient estate from making a specific use of his land. For example, a negative easement may prohibit the owner of the servient estate from constructing a building or fence that obstructs the dominant estate's view of the ocean.

Secondary Easements

A secondary easement is an easement that helps achieve the purpose of the primary easement. In other words, the secondary easement supports the primary easement and is appurtenant (i.e., attached) to the primary easement -- it exists only to support the primary easement. For example, a railroad company may have a right-of-way easement over land for passage of its trains. A secondary easement may consist of the right to enter into the land and build and maintain the tracks.

Easement v. License

It's important not to confuse a license with an easement. A license is a revocable permission given by a landowner to another to make a particular use of the landowner's property. For example, you may own some land in the country that deer just love, so you grant a license to your buddy to hunt your land during deer hunting season. You can revoke your permission pretty much any time you want. While a license is revocable by the landowner, an easement generally is granted in perpetuity or ends at a date certain.

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