An affirmative easement is one that grants someone a right to use another’s land for some specific purpose. For example, if I grant my neighbor the right to use the path on my land to get to the pond on the other side, that is an affirmative easement.
A negative easement is basically a promise not to do something on your land, and most of the time it is going to be something that would ruin a good view. An example would be an agreement to never build anything higher than one story on your property. Many of these are now covered by covenants and restrictions in homeowner’s association, and they are also referred to as easements of light and air (which are only recognized in North Carolina if they are clearly and expressly stated).
An easement appurtenant is an easement that is attached to the land. There must be two tracts of land: one benefitted parcel of land (dominant) and one burdened parcel of land (servient). A dominant estate is the land that was granted an easement. A servient estate is the land that is subject the easement. The easement is attached to the land for the specific benefit and burden of those lands that are subject to the easement. The easement will pass with the transfer of the dominant estate even if the deed does not mention or reference it. Most easements are appurtenant as opposed to in gross. An example is if someone grants land to their neighbor to cross the land to get to theirs.
Easement in gross do not benefit any specific land, but instead benefit a person who is granted the easement. A servitude is placed on the land that will be subject to the easement that and the benefit runs with the person. Common examples of this type include granting a power company or some other sort of utility service company the right to come on the land and place power lines or some other utility item there, and a bill-board site on the side of the road (since someone does own that land).
Easements can be either expressed or implied. If they are express, there can be an express grant of an easement to another (i.e. you can cross over my land to get to yours), or there can be an express reservation that allows someone who is conveying away a portion of his land to reserve an easement for himself after the land is severed (i.e. I am selling my land but I grant myself use of this driveway even thought I am giving it to you). Implied easements are those that are inferred by the court by implication, which is usually when the land cannot be used at all or beneficially without the grant of an easement by the court. There are two types of implied easements: Those implied by necessity and those implied by prior use.
Easements implied by necessity are used when a parcel of land that was previously in common ownership becomes landlocked at the time of the severance of that land and conveyance to another. The parcel must be landlocked, i.e. no way for ingress or egress, at the time of conveyance from common ownership. The requirements are as follows: Conveyance of a portion of land, where, after severance, it is necessary to have an easement in order to have access to the land. In this case, there is an implied right-of-way created. It cannot be based on convenience only, but there has to be a degree of necessity in order to establish the right-of-way across the grantor’s land. For example, say you own 20 acres of land, and only one side of that land accesses the main state road. If you sell 10 acres that then prevents access to the main state road, there can be an easement implied by necessity because you have no way out of your 10 acres that remain.
Easements implied by prior use require a conveyance from common ownership of a portion of the land, and prior to the conveyance the land was used as if there were an easement appurtenant already in existence. There is a requirement of necessity for this easement as well, but the degree of necessity is not as great as the degree needed for an easement implied by necessity. The prior use must be permanent, continuous, and apparent in order to be valid. For example, if you had a waterline running under the land to get to your house, and you sold part of your land that had the waterline under it (but not the part with the house), then you are likely to be able to continue the use of the path because of this type of easement.
Easements Implied From Plat and Easements by Estoppel are similar to one another. They are based on reliance on something in order to purchase a property in most cases. For an easement implied from plat, the basis for the easement is that it was an inducement to someone purchasing the property. For example, if someone purchases a home in a neighborhood, and before they purchase the property, they are shown some map or view of a street or some other part of a communal property that they would be permitted to use.
Easements by dedication are used when a person or entity dedicates or gives an easement to the public.There are certain requirements for this to be valid, but in sum, the person or entity but expressly dedicate the easement, or do so in a manner that is clear.
Easements by prescription are similar to that of adverse possession in that you are using someone else’s land without permission. The requirements are that the use be adverse, a claim of the right to use the easement such that the owner of the land had notice because of its continuity and because it has not been an interrupted use for at least twenty (20) years.
Additionally, there must be “substantial identity” of the easement that is claimed, meaning that the use is noticeable. An example of this is using a footpath over someone’s land to get to the beach quicker without their permission and they know that you do it, or should know.
Other easements in North Carolina include conservation easements, railroad right-of-way easements, and easements for land covered by water. Some specific examples of the most common easements used in North Carolina are driveway easements, ingress and egress easements, utility easements, sewer easements, and right-of-way easements. These common types fall within one of the larger categories explained above.