How Does It Affect Your Property Rights? What Are the Different Types of Easements? How Do You Get an Easement?
When you purchase and take title to property, one of the things that you typically expect is exclusive use of the premises. But that’s not always the case. In many instances, a third party will have what is legally referred to as an “easement,” which gives them the right to use, access, or pass through your property under certain circumstances. What is an easement? Are there different types of easements? How do you get an easement?
What Is an Easement?
An easement is a legal right to use real property that you don’t own. Common examples of easements include:
- Rights of utility companies to enter property when needed to repair, maintain or improve services
- Rights of the owners of landlocked property to cross adjoining property for purposes of accessing public roads
What Are the Different Types of Easements?
The law recognizes three fundamental types of easements—express easements, implied easements, and easements by necessity:
- Express easements are those that have been documented in writing, often as part of the transfer or title documents in the sale of real property. For example, the deed to property may grant the seller or a third party the right of access on or through the property for a number of reasons.
- Implied easements are not generally written down but are reasonably implied by the circumstances of the situation. In most instances, implied easements arise because of existing or prior use of the property. For example, a person may use an access road on his neighbor’s property to get to an outbuilding on his own property. If he has done so for a significant period of time without objection from the neighbor, an easement may be implied.
- Easements by necessity commonly arise when one party owns property that is landlocked by other property and accessible only by crossing a neighbor’s property. To obtain an easement by necessity, you must generally show that the property was once entirely owned by the same person, that it was subsequently divided, and that there is no practical alternative means of access to the landlocked property.
As the law of easements has developed, a number of specific easements have been recognized:
- Easement appurtenant—The easement appurtenant can be either express or implied and commonly allows one party to use another party’s property to get to their own property. For example, one party may be able to get to a shed on their property in one of two ways, either by traveling 20 feet over a neighbor’s yard or driving five miles to enter from the other side. In this case, the neighbor may give the shed owner an easement appurtenant. Such easements usually “run with the land,” meaning that, once created, they automatically pass from owner to owner.
- Prescriptive easement—This type of easement commonly arises out of the use of land. If, for years, a neighbor has been cutting across the corner of your property on the way to the store, without your objection, it’s likely that they now have a “prescriptive easement” to continue doing so.
- Easement in gross—This type of easement, typically in writing, conveys the right to use someone else’s land for a specific purpose. It’s the type of easement that utility companies use to repair lines.
Must an Easement Be in Writing to Be Enforceable?
As a general rule, because easements involve an interest in land, any express easement must be documented in writing to be valid and enforceable. That is not the case with most implied easements.