Easement
Types
Types
Public and private easement
A private easement is held by private individuals or entities. A public easement grants an easement for a public use, for example, to allow the public an access over a parcel owned by an individual.
Appurtenant easement
In the U.S., an easement appurtenant is one that benefits the dominant, adjoining land. An easement in gross is personal to the holder of the easement and does not pass automatically to another person when the easement holder's property is sold and bought.
Easement in gross
An easement in gross benefits an individual or a legal entity, rather than a dominant estate. The easement can be for a personal (an easement to use a boat ramp) or a commercial use (an easement given to a railway to build and maintain a rail line across property). In earlier times, an easement in gross was neither assignable nor inheritable, but today commercial easements are freely alienable. This is not true in England and Wales where easements cannot be in gross. See also Profit (real property).
Floating easement
A floating easement exists when there is no fixed location, route, method, or limit to the right of way. For example, a right of way may cross a field, without any visible path, or allow egress through another building for fire safety purposes. A floating easement may be public or private, appurtenant or in gross.
One case defined it as: "(an) easement defined in general terms, without a definite location or description, is called a floating or roving easement...." Furthermore, "a floating easement becomes fixed after construction and cannot thereafter be changed."
Structural encroachment
Some legal scholars classify structural encroachments as a type of easement.[citation needed]
Dominant and servient tenement
Main article: Dominant estate
Where an easement is appurtenant (in England and Wales, all easements), it will typically require the existence of two parcels of land, known as tenements. The dominant tenement is the land which benefits from an easement, while the servient tenement is the one which bears the burden of the easement.
For example, the owner of parcel B holds an easement to drive over a driveway on parcel A to gain access to his house. Here, parcel B is the dominant tenement, and parcel A is the servient estate.
Profit
Main article: Profit (real property)
A profit (or profit prendre) is a right to take something off another person's land. At common law it was treated differently from an easement, something that is still the case in English law. In other jurisdictions[citation needed] a profit is treated as a special type of easement.
Examples of profits are the right to come onto the property of another and remove fruits, vegetables, and "fugacious minerals" (minerals that tend to be movable) such as gas or oil; by comparison, coal, which does not move, would not be considered a fugacious mineral. The rights of the profit-holder depend on the nature of the profit.
Creation
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An easement may be created in a number of ways. In most jurisdictions in the U.S., if a person regularly uses someone else's property over a statutory period without the consent of the property owner, he acquires a "prescriptive easement" or "easement by prescription."
"Prescriptive easement" cannot give the holder of the easment a right to protect a view over a neighboring property no matter how long a property owner has had a view over the neighbor's property. This right to "ancient lights" is not recognized in any jurisdiction in the United States, although some jurisdictions have provided a similar result through legislation.
In contrast to an easement, which only provides a non-possessory interest, adverse possession gives a complete title to real property.
Prescriptive easement is similarly acquired in England and Wales. If a claimant is able to show that the easement has been used, as of right, for a period of 20 years, the law assumes that the right to use the easement must have been granted - either long in the past (since time immemorial) or more recently where the evidence has been lost (lost modern grant). This can be disproved, for example by showing that the owner of the land was incapable of consenting. This distinguishes this from adverse possession (by which the ownership of the land itself can be acquired by long user) which does not rely on the fiction of a supposed grant but instead on the fact of the use/possession of the land.
Implied and express easement
An easement may be implied or express. An express easement may be "granted" or "reserved" in a deed or other legal instrument. Alternatively, it may be incorporated by reference to a subdivision plan by "dedication", or in a restrictive covenant in the agreement of an owners association.
Under an easement by estoppel, a grantor and an abutter may be estopped from denying the existence of a "paper street", which is shown on a subdivision plan, but has not yet been developed to become an actual road. Moreover, courts typically refer to the intent of the parties, as well as prior use, to grant an easement.
Easement by necessity
Parcels without access to a public way may have an easement of access over adjacent land, if crossing that land is absolutely necessary to reach the landlocked parcel. There is an implied easement arising from the original subdivision of the land for continuous and obvious use of the adjacent parcel (e.g., for access to a road, or to a source of water). This easement is extinguished upon termination of the necessity (for example, if a new public road is built adjacent to the landlocked tenement). An easement by necessity is distinguished from an easement by implication in that the former easement arises only when "strictly necessary," whereas the latter can arise when "reasonably necessary."
The Pennsylvania Courts have described these easements as follows:Distinguished from implied easements from existing use: Implied easements on the grounds of necessity must be distinguished from implied easements from a prior use (also referred to as easements by implied reservation). The two types of easements are often confused by both litigants and the courts because both easements require unity of ownership and subsequent severance. Graff v. Scanlon, 673 A.2d 1028 (Pa. Commonw. 1996). (Citing 11 Am.Jur. Proof of Facts 3d 601, Way of Necessity.) An easement by necessity arises upon a showing that there was a conveyance of a part of a tract of land in such a manner that the part conveyed or the part retained is denied access to a public road. Conversely, an implied easement from a prior use "[is] based on the theory that continuous use of a permanent right-of-way gives rise to the implication that the parties intended that such use would continue, notwithstanding the absence of necessity for the use." Id. Requirements: (a) unity of ownership prior to severance by common grantor; (b) severance by conveyance; and c) easement must be trictly necessary in order for the owner of the dominant tenement to use his land, with the necessity existing both at the time of the severance of title and at the time of the exercise of the easement. Phillipi v. Knotter, 748 A.2d 757, 761 (Pa. Super. 2000)
However, the landlocked owner might be required to obtain a license for a new commercial use or to cause damage during access (e.g., a logging road or blazed trails). Some states, also, frown on granting easements by necessity when the need was created by the owner's own actions, say, by selling off plots of land resulting in a landlocked parcel.
Some U.S. state statutes grant a permanent easement of access to any descendant of a person buried in a cemetery on private property.
In some states, such as New York, this type of easement is called an easement of necessity.
Easement by prescription
See also: Adverse possession
Easements by prescription, also called prescriptive easements, are implied easements that give the easement holder a right to use another person's property for the purpose the easement holder has used the property for a certain number of years, which varies from state to state. Prescriptive easement is not the same as adverse possession, which allows a party to acquire title to real property by asserting possession over it for the statutory period. Requirements vary among states to successfully claim adverse possession, but in most the elements of a prescriptive easement are exactly the same as for adverse possession with the exception of exclusivity.
In California, for example, an adverse possessor is required to assert possession of the property and pay all property taxes for at least five years. In New York, a claim of right is an additional element of both adverse possession and easement by prescription. In Pennsylvania An easement by prescription is created by adverse, open, continuous, notorious and uninterrupted use of land for 21 years. POA Co. v. Findlay Tp. Zon. Hrg. Bd., 713 A.2d 70 (Pa., 1998); Morning Call, Inc. v. Bell Atlantic - Pennsylvania, Inc. 761 A.2d 139, 143 (Pa.Super. 2000); Tricker v. Pennsylvania Turnpike Com'n, 717 A.2d 1078 (Pa. Cmwlth., 1998).
Prescriptive easements are a type of implied easement, in that they arise even though they are not expressly created or recorded. Unlike other implied easements, however, prescriptive easements are hostile (i.e., without the consent of the true property owner). Prescriptive easements do not convey the title to the property in question, only the right to utilize the property for a particular purpose. They often require less strict requirements of proof than fee simple adverse possession.
Once they become legally binding, easements by prescription hold the same legal weight as written or implied easements. Before they become binding, they hold no legal weight and are broken if the true property owner acts to defend his ownership rights. Easement by prescription is typically found in legal systems based on common law, although other legal systems may also allow easement by prescription.
Laws and regulations vary among local and national governments, but some traits are common to most prescription laws. Generally, the use must be open (i.e. obvious to anyone), actual, continuous (i.e., uninterrupted for the entire required time period), and adverse to the rights of the true property owner. The use also generally must be hostile and notorious (i.e., known to others). Unlike fee simple adverse possession, prescriptive easements typically do not require exclusivity. In states that do, such as Virginia, the exclusivity requirement has been interpreted to mean that the prescriptive user must use the easement in a way that is different than the general public, i.e. a use that is "exclusive" to that user, Callahan v. White, 238 Va. 10, 381 S.E.2d 1 (1989).
The period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws (usually based on the statute of limitations on trespass). Generally, if the true property owner acts to defend his property rights at any time during the required time period the hostile use will end, claims on adverse possession rights are voided, and the continuous use time period resets to zero.
In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal property owner, the prescriptive easement may become a regular or implied easement rather than a prescriptive easement and immediately becomes binding. In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement.
Government owned property held for common use is generally immune from prescriptive easement in most cases, but some other types of government owned property may be subject to prescription in certain instances. In New York, such government property is subject to a longer statute of limitations of action, 20 years instead of 10 years for private property.[citation needed]
Prescription may also be used to end an existing legal easement. For example, if a servient tenement holder were to erect a fence blocking a legally deeded right-of-way easement, the dominant tenement holder would have to act to defend his easement rights during the statutory period or the easement might cease to have legal force, even though it would remain a deeded document.
Right-of-way for access is among the most common easement by prescription.
Many ask if a growing tree can be the basis for a claim. In Pennsylvania, the Courts answered in the negative, holding no prescriptive easements are acquired by the growth of tree branches or roots which encroach onto a neighbor property. The Court based its reasoning on the concept that the growth of trees cannot notify a landowner of a claim to the use of the ground and because of the otential of widespread uncertainty occasioned by such easements convinces us that they should not be recognized as a matter of public policy. Koresko v. Farley, 2004 Pa. Cmwlth , 844 A. 2d 607 (2004).
Easement by the government
In the United States, easements may be acquired by the government using its power of "eminent domain" in a "condemnation" proceeding in the courts. Note that in the U.S., in accordance with the Fifth Amendment to the U.S. Constitution, property cannot simply be taken by the government unless the property owner is compensated for the fair market value of what is taken. This is true whether the government acquires full ownership of the property ("fee title") or a lesser property interest, such as an easement.
A similar right to property would appear to exist in the law of England and Wales following the incorporation of the European Convention on Human Rights into English law, in that any deprivation of the rights of the owner of property must be "in accordance with law" as well as "necessary in a democratic society" and "proportionate".
Easement by Prior Use
An easement may also be created by prior use. In this type of implied easement, an assumption is made that the parties intended to create an easement, but simply forgot to include it in the deed. In order to justify this assumption, the use must be visible, permanent, and reasonably necessary. These easements are often inferred in the case of telephone or cable wiring.
Termination
Mere non-use does not generally end an easement. A party claiming termination should show one or more of the following factors:
Agreement to terminate by the grantor and the grantee of the easement
Expiration of the time allowed for the easement
Abandonment or express intent to discontinue the easement
Merger where one owner possesses both dominant and servient tenement
End of necessity which created easement by necessity
Estoppel, where a holder of the easement stopped using it and a third party detrimentally relied thereon
Prescription where a holder of the easement uses someone else to use the easement for a period of statute of limitations
Condemnation by the government through eminent domain
Death of the owner of an easement in gross
Rights
The following rights are recognized of an easement:
Right to light, also called solar easement. The right to receive a minimum quantity of light in favour of a window or other aperture in a building which is primarily designed to admit light.
Aviation easement. The right to use the airspace above a specified altitude for aviation purposes. Also known as avigation easement, where needed for low-altitude spraying of adjacent agricultural property.
Railroad easement.
Utility easement including:
Storm drain or storm water easement. The easement carry rainwater to a river, wetland, detention pond, or other body of water.
Sanitary sewer easement. The easement carry used water to a sewage treatment plant.
Electrical power line easement.
Telephone line easement.
Fuel gas pipe easement.
Sidewalk easement. Usually sidewalks are in the public right-of-way, but sometimes they are on the lot.
View easement. Prevents someone from blocking the view of the easement owner, or permits the owner to cut the blocking vegetation on the land of another.
Driveway easement, also known as easement of access. Some lots do not border a road, so an easement through another lot must be provided for access. Sometimes adjacent lots have "mutual" driveways that both lot owners share to access garages in the backyard. The houses are so close together that there can only be a single driveway to both backyards. The same can also be the case for walkways to the backyard: the houses are so close together that there is only a single walkway between the houses and the walkway is shared. Even when the walkway is wide enough, easement may exist to allow for access to the roof and other parts of the house close to a lot boundary. To avoid disputes, such easement should be recorded in each property deed.
Beach access. Some jurisdictions permit residents to access a public lake or beach by crossing adjacent private property. Similarly, there may be a private easement to cross a private lake to reach a remote private property, or an easement to cross private property during high tide to reach remote beach property on foot.
Dead end easement. Sets aside a path for pedestrians on a dead-end street to access the next public way. Could be contained in covenants of a homeowner association, notes in a subdivision plan, or directly in the deeds of the affected properties.
Recreational easement. Some U.S. states offer tax incentives to larger landowners if they grant permission to the public to use their undeveloped land for recreational use (not including motorized vehicles). If the landowner posts the land (i.e., "No Trespassing") or prevents the public from using the easement, the tax abatement is revoked and a penalty may be assessed. Recreational easement also includes such easements as equestrian, fishing, hunting, hiking, trapping, biking (e.g., Indiana's Calumet Trail) and other such uses.
Conservation easement. Grants rights to a land trust to limit development in order to protect the environment.
Historic preservation easement. Similar to the conservation easement, typically grants rights to a historic preservation organization to enforce restrictions on alteration of a historic building's exterior or interior.
Easement of lateral and subjacent support. Prohibits an adjoining land owner from digging too deep on h
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