An easem*nt is a limited interest in real property. It involves a particular right to use the subject property in a particular manner, but does not necessarily create a right to possess the property. Generally, the easem*nt rights exist at the same time as the rights of other property interest holders.
- Example: An easem*nt commonly grants the right to cross or use someone elses land for ingress and egress. This is known as a right of way.
Easem*nts and Right of Way - Explai...
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An easem*nt may arise by a number of methods, as follows:
An express easem*nt is an easem*nt intentionally granted to another person in writing. It generally arises pursuant to a deed, contract, or testamentary document.
- Example: Emma sells property to Dianne. Emma reserves an easem*nt across Dianne's property. As part of the transaction, Dianne signs a deed granting an easem*nt to Emma.
An affirmative easem*nt grants an individual the right to do something on the subject property.
A negative easem*nt, on the other hand, restricts an individual from using her land in a certain way. Generally, it arises pursuant to a transfer of land whereby the original owner does not want the land used in a specific manner.
- Example: Brad owns two pieces of land that are side by side. He sells one of the pieces of land to Teri. He establishes a negative easem*nt in the land at the time of transfer that states that the land cannot be used in a certain manner.
The easem*nt may attach to the land or it may belong specifically to the person. An easem*nt in gross is an easem*nt that allows an individual to use the subject land. The easem*nt does not attach to the land, rather it is a right held by the individual. In this way the easem*nt in gross is similar to a license.
An easem*nt appurtenant is an easem*nt that attaches to or is a part of the land, rather than owned by an individual. The easem*nt will remain with the property, no matter who owns the property.
- Example: Sally may grant an easem*nt to Victor that allows him to cross her land at a specific location. The easem*nt states the right belongs to Victor and does not attach to the property. Sally can determine whether Victor can transfer the easem*nt to another person, but it is personally owned. This is an easem*nt in gross.
A natural easem*nt arises when it is necessary for an individual or the public to make use of land located near the property subject to the easem*nt.
- Example: Will owns land located behind Gloria's land. The only way that Will can access his land from the public highway is to cross Gloria's land. Will may be able to bring a court action establishing a natural easem*nt allowing him to cross Gloria's land at a specific point. The justification for the grant of easem*nt is that without it, Will cannot use or enjoy his property.
An easem*nt by prescription is obtained by adverse possession (see the discussion of adverse possession). An individual who wrongfully uses someone elses land under the conditions required for adverse possession may pursue a court action to establish ownership rights in the property.
- Example: Winston drives cattle across Mary's property every year for 20 years (the applicable states statutory period). He did so openly; claiming the right to do so; it was known to others; it was done every year; and it was done without the permission and against the Mary's wishes. When Mary finally tries to put up a fence to stop Winston from driving cattle, he brings a court action to establish an easem*nt by prescription.
Discussion Question
How do you feel about an individual acquiring easem*nt rights that are not express? Why should an easem*nt ever belong to an individual rather than attaching to the land or burdened property? How strong should the need be for an individual to acquire an easem*nt by necessity? How frequent must the use of someone elses property be to give rise to an easem*nt by prescription?
Practice Question
Steven owns a tract of land that adjoins the river. He decides to divide his land into two parcels. He maintains ownership of the parcel that adjoins the river. The other piece of property sits directly in front of his property and borders the road. Steven agrees to sell the property adjoining the road to Amy, but he puts in the deed a specific limitation stating that Amy cannot build a building on the far right side of the property. Steven and Amy later get into an argument and Amy seeks to stop Steven from crossing her land to access his property. What legal issues are at play in this situation?
- An easem*nt is an ownership interest in land that allows the holder the right to use another persons land (the fee simple owner) for a specific purpose. An easem*nt may be created expressly by a written deed of grant conveying to another the right to use for a specific purpose a certain parcel of land. An easem*nt may also be created when one sells his land to another but reserves for himself the right to future use of a portion of that land. An easem*nt may also be created by implication when for example, a term descriptive of an easem*nt is incidentally included in a deed. An easem*nt by implication also arises when the owner of two or more adjacent parcels of land sells one lot, the buyer acquires an easem*nt to that visible property of the seller necessary to the buyers use and enjoyment of his lot, such as a roadway or drainage duct. When created in this manner the easem*nt also arises as an easem*nt of necessity. In the practice question, Steven holds an easem*nt interest in Amy's land. The easem*nt is either an affirmative easem*nt allowing Steven to cross the land at a specific place. It may also be construed as a negative easem*nt limiting Amy from doing certain things on a portion of her land.
Related Topics
- Property Law (Intro)
- Tangible and Intangible property?
- Knowledge Capital
- Calculated Intangible Value
- Real and Personal Property?
- Chattel
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- Role of Government in ownership of property?
- Allodial System
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- Encroachment
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- Absolute Title
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- Opinion of Title
- Certificate of Title
- Abstract of Title
- Chain of Title
- Clear Title
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