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Easement Basics

You are interested in purchasing a home, but when you view the house you notice that the only access to it is via a driveway crossing the neighboring landowner's property. How will the driveway impact your potential purchase? A cable television company is seeking to install its cable lines, and would like to run its cable along existing electrical poles. Can the cable company negotiate only with the electric company, or must it negotiate with all landowners whose property is crossed by the electrical poles? Both of these scenarios potentially involve an easement, a property right that gives its holder a nonpossessory interest in another person's land. Easements regularly impact all types of real estate transactions and are increasingly utilized for conservation and historic preservation purposes. Despite their prevalence, many people lack a clear understanding of easements, and the numerous legal problems that can arise in their drafting, interpretation and implementation. 

What Is an Easement?

An easement is commonly defined as a nonpossessory interest in another person's land. The nonpossessory nature of an easement is one of its primary -- and potentially confusing -- characteristics. An easement is a property interest that allows the holder of the easement to use property that he or she does not own or possess. An easement does not allow the easement holder to occupy the land, or to exclude others from the land, unless they interfere with the easement holder's use. In contrast, the possessor of the land may continue to use the easement and may exclude everyone except the easement holder from the land. For instance, if Alvin owns a piece of property and grants Barbara a right-of-way on the road across the property, Barbara has an easement in Alvin's property. Barbara may use the road, but may not stop others from also using the road, except to the extent that their use interferes with her own use of the road. Alvin may exclude everyone except Barbara from crossing his property, while continuing to use the road himself.

Land affected or "burdened" by an easement is called a "servient estate," while the land or person benefited by the easement is known as the "dominant estate." If the easement benefits a particular piece of land, it is said to be "appurtenant" to the land. If the easement only benefits an individual personally, not as an owner of a particular piece of land, the easement is termed "in gross." Most easements are affirmative, which means that they authorize use of another's land.  Less common are negative easements, which usually involve preserving a person's access to light or view by limiting what can be done on neighboring or nearby property.

Creation of an Easement

Easements are usually created by conveyance in a deed, or some other written document such as a will or contract. Creation of an easement requires the same formalities as the transfer or creation of other interests in land -- typically: a written instrument, a signature, and proper delivery of the document. In limited circumstances, a court will create an easement by implying the existence of the easement based on the circumstances. Two common easements created by implication are easements of necessity and easements implied from quasi-easements. Easements of necessity are typically implied to provide access to a landlocked piece of property. Easements implied from quasi-easements are based on a landowner's prior utilization of part of his or her property for the benefit of another portion of his land. Other methods of establishing easements include prescriptive use (i.e. by the routine, adverse use of another's land), estoppel (a legal doctrine involving reliance on the words or actions of another person), custom, public trust, and condemnation.

Legal "Scope" of Easements

After an easement is created, questions often arise concerning the location, dimensions, and scope of the interest. These questions must be resolved on a case-by-case basis, and are impacted by the method of the easement's creation. Questions involving matters clearly covered by the written document, or the prior use or necessity that created the easement, may be resolved relatively easily. However, sometimes the written document, prior use, or necessity does not clearly resolve the question of scope. Written documents creating easements are often vague or incomplete, and inferences from prior use or necessity are imprecise.  In these cases, the parties' intent is uncertain and must be construed by the courts.

Rights and Remedies Under an Easement

As a general rule, an easement holder has a right to do "whatever is reasonably convenient or necessary in order to enjoy fully the purposes for which the easement was granted," as long as he or she does not place an unreasonable burden on the servient land.  Conversely, the owner of the servient land may make any use of that land that does not unduly interfere with the easement holder's use of the easement. What constitutes an undue burden depends upon the facts of each individual situation. For instance, an increase in traffic over an easement giving access to a beach resort may not necessarily constitute an undue burden. But, the traffic resulting from changing a dominant estate from private use to a commercial business might constitute an additional burden on the servient estate. Reasonable use of an easement is not fixed at a particular point in time.  The concept of reasonableness includes a consideration of changes in the surrounding area, as well as technological developments. For instance, courts have allowed an easement holder to convert a railroad right of way to a recreational trail, cut trees within an access easement, and replace a low-pressure gas pipeline with high-pressure equipment.

If a court determines that a servient estate is unduly burdened by an unreasonable use of the easement, the servient estate holder has several potential legal remedies. These include court orders restricting the dominant owner to an appropriate enjoyment of the easement, monetary damages when the easement holder exceeds the scope of his or her rights and injures the servient estate, and in some cases extinguishment of the easement. Likewise, remedies exist for interference by the servient owner. Interference with an easement is a form of trespass, and courts frequently order the removal of an obstruction to an easement, i.e. by ordering the removal of encroaching structures at the servient owner's expense. If interference with an easement causes diminution in the value of the dominant estate, courts may also award compensatory damages to the easement holder.


The transferability of easements must also be considered when undertaking a real estate transaction. An easement's transferability depends on its nature (i.e. whether it is appurtenant or in gross). In general, an easement appurtenant is transferred with the dominant property even if this is not mentioned in the transferring document. But, the document transferring the dominant estate may expressly provide that the easement shall not pass with the land. 

Because easements in gross are treated as a right of personal enjoyment for the original holder, they are generally not transferable. Recreational rights such as hunting, camping and fishing are the most common examples of nontransferable easements in gross. However, several states have enacted statutes designed to facilitate the transfer of easements in gross. The transfer of easements in gross for commercial uses such as telephones, pipelines, transmission lines, and railroads is often permitted.

Other Legal Issues to Consider

Courts generally assume easements are created to last forever, unless otherwise indicated in the document creating the easement.  Despite this, an individual granting an easement should avoid any potential legal or interpretive problem by expressly providing that the easement is permanent. Although permanent easements are the norm, they can be terminated in a number of ways. For instance, an easement may be created for a limited time or conditional duration, so that the easement ends when the time passes or the condition occurs. Easements of limited duration are commonly used to provide temporary access to a dominant estate pending the completion of construction work. An easement may also be terminated when an individual owning the dominant estate purchases the servient estate, or when the holder of an easement releases his or her right in the easement to the owner of the servient estate. This release must be in writing. Abandonment of an easement can also extinguish the interest, but as a general rule mere nonuse of an easement does not constitute abandonment. Under some circumstances, misuse or the sale of a servient estate may terminate an easement. Finally, condemnation of an easement by a public authority, or condemnation of the servient estate for a purpose that conflicts with the easement, terminates an existing easement.

Easements: Getting Legal Help

Easements give an easement holder the right to use or to prevent the use of property he or she does not own or possess. This places the easement holder and the possessor of the servient estate in the unique position of simultaneously utilizing the same piece of land. The prevalence of easements and their nonpossessory nature creates a unique set of considerations in drafting, interpretation and implementation. It is essential to have a basic understanding of the manner in which they are created, their scope, transferability, and methods of termination. Whether an individual or a business wishes to create an easement, purchase property burdened by an easement, or determine the nature of a property interest, the assistance of a land use attorney can be an invaluable asset.


3.         Stephen A. Siegel, A Student's Guide to easements, Real Covenants, and Equitable Servitudes, 1988. 

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