Kara Sears
An easement is a non-possessory right to use or enter onto the real property of another without possessing it. There are six main types of easements, each of which grants property access to someone who has no ownership interest in the property. Easements can be created by law in two ways: first, an easement may be implied by prior use; second, an easement can be implied by necessity. The two main types of easements are affirmative and negative. Affirmative easements allow the use of another's land, while negative easements allow the prevention of certain activities on the land. Less common types of easements include prescriptive easements, which are acquired through the open, notorious, adverse, and continuous use of another's property for a set period. Easements can also be defined by whether one or more parcels are involved.
| Characteristics | Values |
|---|---|
| Type | Affirmative/Negative |
| Creation | Express grant, Implication, Necessity, Adverse possession |
| Termination | Statutory termination, Abandonment, Necessity ceasing to exist, Destruction of servient land |
| Purpose | Right of way, Access to utilities, Preservation of light/view, Public good |
| Involved Parties | Dominant tenement/estate, Servient tenement/estate |
Explore related products
What You'll Learn
Express easements
An express easement is a type of easement that is created by a written agreement or legal document, such as a deed or contract. It is typically conveyed via deed or other written documents that govern the terms of the easement. Express easements are created by a grant, meaning there is an agreement between the owners of the dominant and servient estates. The dominant estate is the parcel of land that benefits from the easement, while the servient estate is the parcel burdened by the easement.
An affirmative easement grants the holder access to a stated portion of another's property for a specific purpose. For example, an affirmative easement could be a property owner's right to use a neighbour's driveway to access their own property. Affirmative easements are the most common type of easement.
On the other hand, a negative easement prohibits someone from doing something on their property that would otherwise be permissible. For instance, a negative easement could restrict a landowner from building a structure that would block a neighbour's view or impede their access to light. Negative easements are generally less common and only allowed in certain situations.
Pass-Fail Option at GW Law: Understanding Credit Limits
You may want to see also
Explore related products
Prescriptive easements
An example of a prescriptive easement can be seen in the case of a landowner who owns a parcel of land on a lake without direct access to the water. The neighbour has a footpath to the waterfront, which the landowner has regularly used for the last 15 years without obtaining permission. In this scenario, the landowner may have acquired a prescriptive easement to use the footpath, as they have met the requirements of open, notorious, adverse, and continuous use.
Additionally, prescriptive easements can be used to end existing legal easements. For instance, if a servient tenement holder erects a fence blocking a legally deeded right-of-way easement, the dominant tenement holder must defend their easement rights during the statutory period to maintain their legal force.
Following Mosaic Law: Is It Possible Today?
You may want to see also
Explore related products
Implied easements
It is important to note that implied easements by necessity can be problematic because they divert from the statute of frauds and may not be recorded, potentially burdening subsequent purchasers of the landlocked property without their knowledge. On the other hand, they can also be advantageous by allowing people to make better use of their land.
Claiming Tax Benefits: Your Mother-in-Law Living With You
You may want to see also
Explore related products
Easements by necessity
An easement is a non-possessory right to use or enter another person's real property without possessing it. It is a property right and a type of incorporeal property in itself at common law in most jurisdictions.
An easement by necessity is a type of implied easement that arises when a landowner conveys a landlocked parcel of land to another. In other words, it occurs when a landowner divides a parcel but leaves one of the parcels landlocked. Common law presumes that the grantee has a right to pass over the retained property if such passage is necessary to reach the granted landlocked property. This type of easement requires strict necessity, meaning the landlocked owner must demonstrate that the only way to access the landlocked parcel is through the other parcel. If there is another way to access the parcel, even if less convenient, an easement by necessity will not arise.
To establish an implied easement by necessity, two elements are needed: 1) unity of ownership prior to separation, meaning both estates were once owned as a single unit or tract, and 2) necessity for the easement at the time of severance. The traditional view requires strict necessity, where the owner of the landlocked property must prove that the severance of title caused the property to be absolutely landlocked, with no legal way of accessing their land. A minority view requires reasonable necessity, which acknowledges that there can be no other reasonable way of enjoying the property without the easement, beyond mere convenience. This view recognizes easements not just for roadways but also for things like utility lines, which the traditional view does not recognize.
An easement by necessity can arise over land that was once owned by the same person. However, a landowner cannot divide their property and then demand access over a neighbor's parcel. Additionally, an easement by necessity can lie dormant through several transfers of title and still pass with each transfer as appurtenant to the dominant estate. It is important to note that if a grant of a landlocked property specifically states that the new owner will not have a right of way across the grantor's property, then there will not be an implied easement by necessity.
Who Can Be Elected Pope? Canon Law Explained
You may want to see also
Explore related products
Affirmative and negative easements
Easements are a type of property right and can be created in several ways. They can be created by express grant, by implication, by necessity, and by adverse possession. Most easements fall under one of two categories: affirmative and negative.
Affirmative Easements
Affirmative easements give the easement holder the right to use the grantor's land in a specific way. Most easements are affirmative. For example, an affirmative easement may allow the holder to access their landlocked property via a road located on another party's land. Towns often use affirmative easements to build roads or utilities on privately owned land. Other examples include allowing utility companies to draw power lines and granting access to a public beach.
Negative Easements
Negative easements allow the easement holder to prevent the grantor from performing an otherwise lawful activity on their land. Negative easements are less common and are generally disfavored, only being allowed in certain situations. An example of a negative easement is restricting the grantor from building a structure that obscures light or a scenic view. Conservation easements are a specific type of negative easement where a landowner voluntarily agrees with a government agency or land trust to restrict development, such as hunting, building, or harvesting timber.
How Governors Influence Local Laws and Policies
You may want to see also
Frequently asked questions
An easement is a nonpossessory right to use or enter onto the real property of another without possessing it. It is a property right and a type of incorporeal property in itself at common law in most jurisdictions.
There are six main types of easements: Express easements, Prescriptive easements, Easements in gross, Easements by necessity, Private easements, and Utility easements.
Easements are most often created by express language in binding documents. Alternatively, an easement may be implied by prior use or by necessity.
