EASEMENTS

(Information from REBAC June 2004 edition)

Easements provide one party the right to make use of specific aspects of property that they do not possess. Even though easements don’t convey ownership rights, they can affect property values. Because of this, it’s important to understand the different types of easements and the rights that they convey.

Because easements are typically designed to meet the needs of one property owner at the expense of another, the two parties to an easement are distinguished as the benefited party and the burdened party. For example, a benefited property owner’s driveway runs through his neighbor’s burdened property.

Easements generally fall into these two broad classifications:

Easement Appurtenant: an easement that clearly benefits one party over another. The benefited party is called the dominant estate, whereas the burdened party is the servient estate. For example, a dominant estate may have access to a lake by means of an easement appurtenant that runs through the servient property. These rights remain attached to the affected properties, regardless of change of ownership.

Easement in Gross: an encumbrance on a servient estate that does not provide any benefits to land owned by the holder of the easement. Examples would include easements for public utility lines or billboards. While easements in gross typically terminate upon the death of the owner of the easement or sale of the property, certain easements in gross (primarily those for commercial purposes, such as for public utilities) are more substantial and typically assignable.

Easements are also classified according to various uses associated with land. An affirmative easement, for example, may provide rights to cross a property. A negative easement, on the other hand, could be sought to prevent a neighbor from building a home above a predetermined height that would block their view. Aviation easements allow aircraft to fly at low altitudes over property adjoining an airport.

Avoiding legal disputes: Since easements can convey real interests in land, it is important that these rights be carefully clarified in writing. Most legal disputes involving easements result from a failure of the parties to define the purpose of the easement, as well as all aspects of its rights and restrictions, including the precise location of the easement, who is responsible for maintenance and repair, and other terms.

Easement vs. Profit vs. License: Easements are sometimes confused with two other related terms—profits and licenses. A profit differs from an easement in that it deals with rights to remove certain assets from the land, such as timber, minerals, crops, soil or water. While both easements and profits are legally enforceable non-possessory interests in land, the main difference between the two are that easements define rights to use land, whereas profits define rights to remove products from the land.

Licenses, on the other hand, are used to provide permission to use another’s land, but only for so long as the landowner allows this permission to exist. Unlike an easement, a license is not considered an interest in the land itself. Further, licenses are usually conveyed verbally, whereas easements exist as formal documents. For example, if a landowner tells a friend that he has permission to hunt upon his property, this would be considered a license. The permission to hunt can be verbally revoked at any time.

Terminating Easements: Easements can only be terminated under very strict circumstances, including merger, abandonment or release. A merger occurs if the owner of the dominant estate becomes the owner of the servient estate. Abandonment requires observable actions beyond simple nonuse; for example, the owner of a dominant estate erects a fence over his access easement. The owner of a dominant estate can also formally release his easement rights, typically by means of a quitclaim deed.

As always, please consult with your attorney with specifics involving your property.