Demystifying Easements: Understanding Your Property Rights

  1. Civil Disputes
  2. Demystifying Easements: Understanding Your Property Rights

In the realm of property law, easements play an integral role in regulating and defining the rights and obligations associated with land ownership. An easement refers to any grant of an interest in the land that entitles a person or entity to use land that is possessed by another for some specific purpose. Unlike other interests in land or property, an easement is not freely revocable. An easement is also not a possessory interest in the property. It is important that an individual conveyed an easement understand that an easement does not confer ownership in property or land, but rather it provides a limited right to utilize the land. Easements typically benefit the holder of the easement, known as the dominant tenant or tenement, and burden the property and/or owner of the property, referred to as the servient tenant or tenement, though it is possible for an easement to benefit both the dominant and servient tenant or tenement.

Easements are generally divided into easement appurtenant and easement gross. An easement appurtenant attaches to and benefits a parcel of land regardless of ownership of the property. Easement appurtenants, due to being attached to the land itself, will continue to benefit all successive owners of the property. These types of easements are typically associated with adjoining parcels of property, such as a right-of-way allowing access to a landlocked property or when permission is given to egress or ingress over another person’s property. Unlike easement appurtenants, easements in gross benefit a person in their capacity regardless of any ownership in property or land. A utility company, for example, may hold an easement in gross to install and maintain power lines.

Before the development and popularization of real covenants, easements also used to be divided into affirmative and negative easements. Affirmative easements give the holder of the easement the right to come onto the property of another for some limited purpose. Negative easements, on the other hand, give the holder of the easement the right to prohibit the owner of the property from utilizing their property in some way. At common law, negative easements fell into the following four categories: air, light, support, and access to water from an artificial stream. Nowadays, negative easements have mostly been replaced by real covenants, and are generally only seen in the form of easements of view, solar easements, and conservation easements.

When an easement is created, it is either expressly or impliedly created. Express easements occur when the easement is given explicitly in a record or a deed. This means the easement must be in writing and that the writing for the easement must comply with the statute of frauds. The statute of frauds requires that the easement be in a written instrument signed by the party that is to be bound by the instrument. Generally, an easement can either be expressly reserved or expressly granted. When a person expressly reserves an easement, they, the dominant tenant and tenement in this case, are granting themselves an easement over property that they are selling to another. If a person expressly grants an easement, then that means they, the servient tenant or tenement in this case, give another person an easement. A grant of the easement can occur during the process of conveying property or outside of that process. As for implied easements, there are four kinds of implied easements. The first kind of implied easement is an easement by implication. An easement by implication is an easement that is implied through prior use of the property. The three requirements that must be met for an easement by implication are that the easement must be an easement appurtenant, that there be unity of title before severance, and that the use of the property at the time of severance be apparent, continuous, and reasonably necessary. The second kind of easement is an easement by necessity, which is an easement that is implied through the necessity of its existence. The requirements that must be met for an easement by necessity are that the easement must be an easement appurtenant, that there be unity of title before severance, and that the severance creates a strict necessity. The third kind of easement is an easement by prescription. An easement by prescription is implied through adverse possession and as a result, it requires that the following elements be met, the use be actual, adverse and hostile, open and notorious, and continuous and uninterrupted for the statutory period, and that the statutory period, as defined by law, be met. The last kind of easement is an easement is an easement by estoppel, which is implied through an irrevocable license. An easement by estoppel requires that the dominant tenant has been granted a license and that the dominant tenant makes a substantial expenditure or improvement in reliance on the license. Implied easements can also be both granted and reserved.

King Law Offices is a full-service law firm with an outstanding team of professionals who work diligently, creatively, and compassionately on behalf of our clients each day. If you have a current conflict surrounding an existing easement or the creation of an easement, contact King Law at 888-748-KING (5464) for a consultation. We have offices located across western North Carolina and upstate South Carolina. We are here to serve you and to guide you as we navigate this journey together.

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