The Concept and Basics of Easement
Formerly, the concept of easement originally connoted simple “right-of-way” to traverse through a vast realm of an estate in order to reach other properties. Since the passing of time brought changes, which altered the facets of land ownership, the property easement rights of an owner were likewise modified.
Nonetheless, let us first understand the concept and basics of easement in today’s context.
What is Easement?
Easement refers to the right to use, in a specific and limited capacity, a portion of a property that is technically conveyed by the owner of the titled land, to benefit other landowners, or a specific entity, or the public as a whole.
Some commercial edifices are required to keep the front portion of the property vacant and unoccupied, usually to serve as a parking lot. This is also termed as an easement, as it limits the property owner’s right to maximize the full area of his land holdings.
In cases of utility companies, they negotiate easement rights to use a specific portion of the land in which cables, pipes, or lines are allowed to run under a titled property, in order to provide services to the customers situated within the vicinity.
In its entirety, the concept of easement exists in all real estate holdings either as user or provider. Thus, determining the property easement rights of an owner will depend on the title-holder’s role. Easement may refer to the landowner’s right to limit, or to transfer, or to sell the easement benefits for the use of others
On the other hand, this may also be a matter of determining the existing rights of owners’ of adjacent landlocked lots from accessing the main road. Rights of easement may also be exercised by the municipality in which they are located.
In line with this, the parties to an easement are described by their respective properties in the succeeding sections:
Parties to an Easement
Servient Estate or Property – this is the land that furnishes the easement rights. A buyer of a real property would be interested to know the extent by which he is obligated to furnish the free use of his property, and the manner by which his property can be used by others.
Buyers of servient properties should further ascertain if some portions of the estate are under special easement agreements, which were entered into by the title owner for the benefit of a third-party user.
Dominant Estate or Property – traditionally, this refers to the adjoined properties and the specific portion of the adjacent land used as an access to the main road, which denotes the property easement rights of adjoining owners. Today, some easements do not require a dominant land because the rights are awarded to a specific person or entity, and do not become attached to the property.
Nevertheless, a buyer of a real property should first establish if his right of easement will be provided without the need to pay or demand for it.
This now brings us to the importance of knowing the different types of easement, which defines the rights of the servient or dominant property.
The Most Common Types of Property Easements
Easement Appurtenant – This is the most prevalent of all easement rights as it exists where there are two or more lots adjoined but owned by two or more different parties. The dominant properties are those separated from the main thoroughfare or landlocked from the public road, while the servient properties are those that allow the owners of the dominant lands to pass through its estate holdings. This is the traditional “right-of-way”, which is inherent to both servient and dominant properties, and known for its legal term as easement appurtenant. In layman’s term, appurtenant denotes an accessory.
Can a Landowner Sell the “Easement Appurtenant” Separately to His Neighbors?
The original granting of this accessory was required to be conveyed in writing, and there is a possibility that the very first owner of the servient estate may have granted the right-of-way to the dominant estate in exchange for monetary considerations.
However, the conveyed right became an appurtenant, or accessory, to the dominant land and not to the owner; hence, if there were changes in ownership in the past, the transfers of titles included the easement appurtenant. This means there is no need for the servient landowner to sell it separately to the new owners of the adjacent land. The easement appurtenant became inherent to the land and its value by the actions of the very first owner.
Easement appurtenant will cease if both the servient and the dominant estate become the properties of a single landholder.
Easement in Gross – In contrast to an easement appurtenant, this is now the conveyance of easement rights to benefit a specific person or entity, usually for a commercial purpose, and for a specified period of time.
The easement in gross may be conferred by the owner of a servient property to an entity or an individual for commercial purposes, i.e. underground installation of pipelines or cables, or for use as a billboard-site and its structures.
The easement in gross agreement should bear specific details as to:
- Whom the benefit was awarded;
- The length of time or a specific period that the agreement will be in effect;
- The specific portion and area of the land covered by the easement agreement;
- The terms and conditions that govern the agreement in order to maintain the enforceability of the user’s right over the specific portion of the property.
In cases of disputes, the absence of any formal agreement which specifies all these details could easily be presumed by a court of law as an easement appurtenant and has become inherent to the property. Basically, this type of easement is assignable in case the entity, who is the beneficiary to the right of use, is absorbed by another company or its creditors.
As a rule, easements in gross should be recorded in the locale’s public registry. If a dispute arises due to the servient owner’s failure to submit a copy of the related agreement to the public registry, the said owner will be liable and be ordered to indemnify the aggrieved party.
Personal Easement in Gross
An easement in gross can be a personal agreement between a landowner and his friend. In this agreement, the conveyed right is for the benefit of a specific person and is generally co-terminus with the life of the latter or with the transfer of ownership of the servient land, whichever of these two events happens first. A personal easement in gross is considered non-transferable.
To illustrate by way of example: Land Green and Land Blue are next to each other, and both lands enjoy access to the main road. However, a fishing lake is on the other side of Land Blue, and its owner provided the owner of Land Green a pathway leading to the fishing lake. This makes it possible for the latter to gain access to the lake, even if the owner of Land Blue is away. The right of Land Green’s owner to fish in the lake is limited for his personal use.
In the event of the death of the owner of Land Green, the owner of Land Blue has the right to close the pathway leading to the fishing lake, since the personal easement in gross is co-terminus with the life of the owner of Land Green.
On the other hand, if the owner of Land Blue decides to sell his property, the new owner has the property easement rights to close the said pathway, even if Land Green’s owner is still alive because the agreement was based on a personal relationship between the latter and the previous owner of Land Blue.
This type of easement exists not by mutual agreement but by mere continuous use even without the permission of the property owner whose portion of land is being used, usually as a right-of-way. Every law provides a prescriptive period by which continuous use will grant the users the right to the property they have been utilizing for a specific number of years.
This is one of the important aspects of easements which every real estate buyer should look into because most prescriptive easements are not recorded in the public registry. Nonetheless, sellers are required by real estate laws to disclose if their properties have prescriptive easements attached to the respective landholdings being sold.
Basic Requirements for Prescriptive Easement
This type of easement is granted if the property is open or unfenced, and the public has been using it for a number of years even without the landowner’s express permission.
However, prescriptive easement is usually granted if the public benefits from the use of said land to gain access to surface waters or sea-beds as a means for livelihood. It is also allowed if it provides access for customary recreational purposes that will benefit the general public and for the prosperity of the entire community. Prescriptive period is not granted to benefit a private resort or any for-profit establishment.
The laws governing prescriptive easements vary from state to state; inasmuch as some courts require the users to show concrete proof that they have been using the property within the number of years prescribed by law. Some states grant prescriptive easements without requiring proof of continuous use but by virtue of customs.
The beach water, as an example, is used for customary recreational activities but continuous use is impossible due to the changes in seasons. However, it would be impossible to enjoy the beach waters without allowing the swimmers’ access to the open sand area; hence, prescriptive easements may be granted.
Public easement is the right of the government to claim a portion of the land for use as streets, paths, highways, or even airspace. The rational behind this right is that the issuance of the original title deed for the property came with a reservation or the dedication of a portion of said land to the government. This is in the event that it will become necessary to provide related services needed by the community.
Public easements in the US cannot be taken by the government without properly compensating the property owner based on the fair market value of the land being taken.
There are many more types of easements that may exist, and some other examples are those that arise out of need, or for environmental preservation, or conservation purposes. As mentioned earlier, every US state has its own set of laws governing easements, but the most basic rule is for the seller to embody all easements granted by way of a deed and register the same with the public registry. This way, anyone conducting a title search can ascertain if the property easement rights of the title owner are assured or if any easement agreement in favor of a third party exists.
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