Easements

Easement

A right held by one person to use the land of another for a specific purpose, such as access to other property.

Appurtenant Easement

An appurtenant easement involves two properties, owned by two different owners. The two properties involved are called Dominant and servant.

Dominant

Is served by the servient property to benefit it in some way.

Servient

Serves the dominant property. May be larger than the dominant property.

Ingress

"To enter" on an easement.

Egress

"To exit" on an easement.

Easements by necessity/Implied Easement

A court order creates an easement by necessity to permit someone to gain access to a property. Most often, Easements by Necessity occur when a certain piece of land is completely landlocked and would otherwise have no other access to a road. For example, if your land were completely landlocked, and the only way to get to your land was by crossing over Bill's Property, an Easement by Necessity would exist providing you access to the road over Bill's Property. For example, say Property Owner A sells Buyer B a back portion of land but neglects to give Buyer B an easement for access. If A then refuses to give B the easement, B can go to court and get it by court order — an easement appurtenant. Easement by Necessity can and will only last, for so long as it is necessary to achieve its result. Given our previous example, if at some later time the city buys some land next to you and puts in a new road that now gives you direct access without having to cross anyone else's property, your previous Easement by Necessity over Bill's Property will cease to exist because it is no longer necessary to achieve its result. In that case, the Easement by Necessity would be "extinguished."

Easements by prescription

An easement by prescription is an easement that is created by the actions of one person against the interests of another person. It MUST be adverse, meaning without permission from anyone. If you want to establish a Prescriptive Easement over someone else's property, you have to be using the property in some normal kind of Easement way like a pathway, driveway extension, garden, etc. An example may help explain this type of easement: Every night when your neighbor Joe comes home, he drives his car across a corner of your property. The reason doesn't matter; he simply does it. You see him do it but never stop him, and he does it for a long time. Eventually you get tired of him driving across your property and tell him to stop, but he says, "No way, I've got an easement by prescription." Joe takes the matter to court, and the court agrees with him. Joe now has a permanent easement by prescription across your property. Easement by prescription requires a court order as a result of a lawsuit. The fact that Joe's actions had persisted for a long period of time came into play. That length of time varies according to which state you're in. You saw Joe cross your property. His use was open and what lawyers call notorious, meaning it wasn't hidden. In a sense, by not telling Joe to stop sooner, you gave him silent permission to use your property.

Easement in gross

An easement in gross involves only one property. In an easement in gross there is no dominant Tenement. Typical easements in gross that you may see are utility easements. For example, the electric company wants to connect a line between two poles. They need to cross your property to do this. That would be an easement in gross. If you have an easement in gross to cross your neighbor's land on to your land, it means that the easement is for your own personal use, and may not be a right which would be included with your land should you choose to sell your land. Does not transfer with the land when it is sold.

How do you end an easement?

Easements can be terminated in several ways, including: An agreement or release: The person who possesses the easement (dominant tenement) agrees to give it up or release the person across whose property the easement exists (servient tenement) from the obligation. By merger: A has an easement to cross B's property. B buys A's property. The easement disappears as you would not need an easement across your own property. By abandonment: Say you had a driveway easement to some country property that you visit regularly, and for one reason or another, you stop going to the property. Unlike a dog when you abandoned an easement it will cease to exist. On a side note, rescue a dog please! The need no longer exists: The need for the easement may no longer exist. Usually some form of court action is needed to terminate an easement, unless the two parties agree, in which case some form of legal document agreeing to the termination of the easement needs to be executed and recorded.

Statute of Frauds

Easements must be in writing to be valid

Encroachment

When you think of the word encroachment you think of somebody stepping over a line from there side on to yours. For all of the football fans out there we hear all the time when the defensive team goes over the neutral line prior to the ball being snapped. In real estate it is not all that different. An encroachment is the physical intrusion of a structure or improvement on the land of another. Examples can also include a fence or driveway over the property line. Remember your property line extends upwards to the sky therefore a tree hanging over on to your property is encroachment as well. An encroachment can be found by a survey. Encroachment is a form of trespass, therefore when an encroachment occurs you may be able to sue your neighbor for trespass.