Real Estate Law

Easement Basics 101

An easement gives a person or entity the ability to enter someone else’s property under certain, limited circumstances and only those circumstances. Any action that is not within the easement’s scope would ostensibly violate the easement that’s been given. Easements are usually not problematic or extensively hinder a landowner’s ability to their property. Indeed, they can be quite advantageous and provide services landowners wouldn’t otherwise have. For example, consider utility companies, who generally require an easement to install and maintenance power lines. 

Where an easement is involved, the grantor (the person or entity granting the easement) still has the ability to use their land as long as their use does not hinder the grantee’s (the person or entity receiving the easement) ability to use the property as well. Although, as discussed above, easements will not be a detriment to most landowners, they can get hinder a landowner’s ability to use their property in the manner they desire and do have a long-term impact on a landowner’s property rights. Indeed, not all easements are created through a conveyance, and some easements can be created by long-term, unauthorized use, which can also hinder or limit an owner’s property rights.

Easements generally come in two varieties: affirmative easements and negative easements. An affirmative easement allows the easement holder to do certain things as it relates the property, and a negative easement restricts the owner in taking certain actions with respect to the property, or otherwise restricts their rights to the property. Easements can additionally be reduced in into two broad categories: easements in gross and easements appurtenant. Where easements in gross are usually more likely to be public easements, easements appurtenant are more likely to be private easements (although utility easements, which are ostensibly “public easements” are considered easements appurtenant). Private easements can be additionally reduced into two more subsets: easements by necessity and easement by prescription. Where easements in gross are likely to involve people or entities, easements appurtenant involve an estate. We will discuss what all these terms mean, and all these easement “types”, in detail below.

Easements In Gross

An easement can either be an easement in gross or an easement appurtenant. However, to say that an easement in gross is an easement at all is a bit misleading. Rather, an easement in gross is essentially a license. Where an easement is generally connected to the land, a license is connected to a particular person or entity. For example, an easement in gross might give a person the right to swim or hunt on another person's property. When the property owner changes, the easement in gross terminates, and does not have to be honored by subsequent owners.

Accordingly, there are two substantial ways in which easements appurtenant (discussed below) and easements in gross can be contrasted: (1) easements appurtenant are tied to land; and (2) those with easements in gross are not estates, they are people, entities or services. An easement is tied to the land when the easement continues, even when ownership changes. Conversely, an easement in gross is attached to a particular person rather than the land, and the easement in gross does not extend to subsequent owners. For more on easements in gross, see Gross v. Cizausk.  

Easements Appurtenant

An easement appurtenant is tied to the land, or “runs with the land” as explained above. This means that when the property owner changes, both the subservient owner and the dominant owner must honor the easement. Where the subservient owner holds the easement, or has the right to access another person’s property, the dominant owner is the one whose property is burdened by the easement.

Many easements appurtenant are also considered “express easements” and are created when an easement is sold to a neighboring estate. An express easement is usually created through an easement agreement deed between two estates or can be created by court order. The only way to terminate an easement appurtenant is to sign a release, abandon the easement (i.e., stop using it), or the properties merge into a single tract or estate. For an interesting case comparing easements appurtenant and easements in gross, see Springob v. Farrar, an opinion issued by South Carolina’s Supreme Court.

Utility Easements

As mentioned above, utility easements are likely the most common easement type and are generally viewed as necessary. Most landowners expect to have, or need, electricity, running water, sewage, cable, etc., on their property and they need a utility company to manage these services. Indeed, when a buyer is looking to become a landowner, they are likely to discover many pre-existing easements on the property they plan to purchase, which is generally unproblematic, as most utility easements do not give utility companies unlimited access to your property. The easement grants either public or private utility companies (or both) limited access to the property in event that the utilities need to be inspected, repaired, or need to receive maintenance. Utility easements are considered easements appurtenant, and the easement will continue to remain, even when the property changes owners over time. However, utility easements can also be viewed as an easement in gross because it is a personal right to access.

Private Easements

Where a utility easement is per se a public easement that provides multiple people access to a single property, a private easement is generally more restrictive, and only gives limited people the right to use the property. Generally, private easements are categorized into easements by necessity and easements by prescription.  

Implied Easements

Many times, easements by prescription are considered to be “implied easements.” An implied easement can only be created when two parcels were at one time treated as a single tract, owned by a single or common owner. To that end, implied easements are considered easements appurtenant, but cannot be easements in gross. For example, an easement created by necessity, discussed immediately below, is an implied easement.

Easements by Necessity

Although easements by necessity, also known as “access easements,” are not as common as other easements, like utility easements. An easement by necessity scenario might arise when a property owner is landlocked and must cross a neighboring property owner’s parcel via gravel driveway or some other designated path in order to leave or to access a public road. Although this might seem inconvenient to the landowner and they may want to deny access to the grantee, a non-consenting property owner who does not want to provide access will not have the option to decline giving their neighboring landowner the easement. Not only is denying access unnecessarily burdensome on the neighboring landowner, but it violates long-held property principles that encourage property productivity. For more on easements by necessity, consider reviewing Stock v. Ostrander and Lew Beach Co. v. Carlson.  

Easements by Prescription

Prescriptive easements, unlike most utility easements, are not granted through a conveyance and will generally not be recorded (we will discuss recording in detail below). An easement by prescription is generally created by continuously using another person’s property in a certain manner over a certain period.

Easements by prescription are akin to adverse possession, which we will not discuss here. However, see Brooks v. Jones, a Texas case, on a deeper discussion into the elements required to establish an easement by prescription. Generally, to establish an easement by prescription, the use must be: (1) “open and notorious” (i.e., not secretive or hidden); (2) the individual must actually use the property; (3) the use is continuous throughout the statutory period (can range between 5-30 years, depending on the state statute at issue); and (4) the use is averse to the true owner (i.e., the use occurred without the true owner’s permission). Interestingly, the servient landowner’s (the true landowner’s) objections to the dominant owner’s use will not impact prescriptive use except where the state recognizes the “loss grant theory.”

Terminating an Easement

There are various ways in which an easement can be terminated. Generally, an easement can terminate when: (1) the express time period that the easement was set to exist lapses or expires; (2) the easement has been validly revoked; (3) the servient estate has been destroyed; (4) the necessity creating the easement ends; (5) the dominant and servient estate merge into a single estate; (6) the dominant landowner validly conveys the easement to the subservient landowner; (7) the servient tenant abandons the easement; (8) the subservient landowner regains the easement through prescription; (9) the dominant owner abuses the easement, and the easement is thereby revoked.

Title Searches

So, how does a landowner know whether they have an easement on their property? Easements can be discovered by having a title search done. Where there is an easement, it needs to be recorded with the county in which the property is located. This puts all buyers to come on notice that there’s an easement and that some other person or entity has “superior” title to the property. However, not all easements are properly recorded. In what situations (as discussed above) do you think an easement may not have been recorded, but is nonetheless valid? One such situation may be where an implied easement exists, or perhaps an easement by prescription (although there will generally be a quiet title action in this scenario to establish ownership).

Accordingly, not all easements will be caught by having a title search conducted. A deed that was not recorded in the title chain will not be discovered. When this happens, title becomes “unmarketable.” Generally, to get lending to purchase property, the lender will require the purchaser to have a title search done to ensure there are no competing claims to the property and that the title is “marketable.” In this case, a quite title action might be necessary to establish marketable title.

Resolving Ownership Disputes: Quiet Title Actions

Quiet title actions are legal actions used to establish property ownership. These actions are most commonly used in adverse possession cases, mortgage lender disputes, when title owners die, and when a property remains unused or unoccupied throughout long periods. The action will attempt to eliminate any ambiguities regarding who owns legal title to the property and will also protect the prevailing party against continued claims by other persons or entities. However, where a “new” owner is established through a quiet title action, they will generally not receive as much legal protection as the previous owner.

In Conclusion…

As you can see here, there is a lot to know and understand about easements. Easements are an essential aspect in understanding property law, as easements can substantially impact a landowner’s rights and their ability to use their property. For this reason, it is important to make sure a title search is completed prior to purchasing property, and to consult with an attorney experienced in your state’s property laws when there are any questions about who may have title to certain property.