An easement is a limited right to use another person's land for a stated purpose. For example, an easement may allow someone to use a road on their neighbor’s land to get to their own. Easements may also be used to lay railroad tracks or electrical wires. An easement may be classified as either an easement appurtenant or an easement in gross.
An easement appurtenant is an easement that benefits one parcel of land, known as the dominant tenement, to the detriment of another parcel of land, known as the servient tenement. Easements appurtenant are attached to the land and are transferred automatically when the servient or dominant tenement is sold to a new owner.
For example, Landowner A may grant an easement appurtenant to the neighboring parcel of land, owned by Landowner B, allowing B to cross A's property each morning to reach a public beach. Landowner A owns the servient tenement, while Landowner B, who benefits from the easement, owns the dominant tenement. Because the easement belongs to the land and not a specific person, B will still be able to use the easement if Landowner A sells his property to Landowner C. Similarly, if Landowner B sells his property to another landowner, that landowner will be able to use the easement.
Easement Appurtenant vs. in Gross
Easement Appurtenant = an easement attached to a parcel of land Easement in Gross = an easement attached to a particular person or entity
Easements in Gross
In contrast, an easement in gross benefits a person or entity, rather than a parcel of land. If the property is sold to a new owner, the easement is typically transferred with the property. The holder of the easement, however, has a personal right to the easement and is prohibited from transferring the easement to another person or company.
For example, Landowner A may grant an easement in gross to a utility company, allowing the company to bury a gas pipeline across his property. Landowner A may transfer the property to Landowner B without terminating the easement. The utility company may not, however, transfer the easement to another person or company without the landowner's consent.
Creation of Easements
An easement may be express, implied, or prescriptive. An express easement is created by a written agreement between landowners granting or reserving an easement. Express easements must be signed by both parties and are typically recorded with the deeds to each property.
An implied easement may be created only when two parcels of land were at one time treated as a single tract, or owned by a common owner. Accordingly, easements appurtenant may arise by implication, while easements in gross may not. An easement may be implied by existing use, or by necessity. An easement is implied by existing use if the easement is necessary for the use and enjoyment of one parcel of land, and the parties involved in dividing the tract into two parcels intended that the use continue after the division. An easement is implied by necessity when one parcel of land is sold, depriving the other parcel of access to a public road or utility.
Prescriptive easements arise if an individual has used an easement in a certain way for a certain number of years. In most states, a prescriptive easement will be created if the individual's use of the property meets the following requirements:
A key difference between a prescriptive easement and adverse possession is that prescriptive easements generally do not require exclusivity.
The use is open and notorious, i.e. obvious and not secretive.
The individual actually uses the property.
The use is continuous for the statutory period - typically between 5 and 30 years.
The use is adverse to the true owner, i.e. without the owner's permission.
Use of the Easement
The person who uses the easement (the "easement holder") has a duty to maintain the easement. The owner of the easement may repair and improve the easement so long as it does not interfere with the easement holder's use and enjoyment of the easement. The easement must be used for its original purpose, though the scope of use may change to suit reasonable development of the dominant tenement.
Termination of Easements
Easements will continue indefinitely unless terminated by by an express agreement, abandonment, merger, or a lack of necessity. Easements may generally be terminated when the easement holder and the easement owner agree in writing to end the easement. If an easement holder takes affirmative action to permanently desert an easement, the easement may terminate by abandonment. Non-use of the easement alone will not qualify as abandonment. Pursuant to the doctrine of merger, an easement may be extinguished if the owner of the dominant estate obtains title to the servient estate. Finally, an easement by necessity may end when there is no further need for the easement.