What Is an Easement in Real Estate Law?

In real estate law, an easement is a property right that gives the easement holder a limited legal right in land owned by someone else. For example, you can give your local utility company an easement to install power lines on your property. The easement gives them the legal right to access your property but does not give them an ownership interest.

This FindLaw article describes how easements are created and the rights and remedies they provide. If you need help creating or contesting an easement, a real estate attorney can offer advice. 

Easements at a Glance

Private property easements are nonpossessory property interests. They allow the holder of the easement to have a right of way over the owner’s private property.

Property Owner Rights vs. Easement Holder Rights

An easement doesn’t allow the easement holder to:

• Permanently occupy the land
• Exclude others from the land unless they interfere with the easement holder’s use

In contrast, the property owner may continue to enjoy their real property. They retain the remaining rights of property ownership. They may exclude everyone except the easement holder from the land.

Servient vs. Dominant Estate

The land affected or burdened by an easement is called a servient estate or servient tenement. The land or person who benefitted from the easement is known as the dominant estate or dominant tenement. The dominant estate holder is responsible for maintaining the easement.

Appurtenant Easement vs. Easement in Gross

An easement can either benefit a person or a piece of land. If the easement benefits a particular property, it’s said to be appurtenant to the land. If the easement only benefits an individual, the easement is known as in gross. Easements in gross do not run with a person’s land, so they do not pass to new owners in the future.

Types of Easements

Most types of easements are affirmative easements. This means that they allow the use of another’s land. Less common are negative easements, which usually involve preserving a person’s access to light or view. This is accomplished by limiting what can be done on a neighboring or nearby property.

Easements may also fall under one of the following categories:

• Prescriptive
• Implied
• Express

Prescriptive Easements

Prescriptive easements are made over time when someone gains a right of way that is continuous. This can come up under adverse possession.

Implied Easements

Implied easements exist where it is reasonably necessary for neighboring properties to function as intended.

Express Easements

Property owners create express easements through deeds or legal documents that set out the terms of the easement.

Public Easements

Public easements benefit government interests for the public good. They include accommodation in private lands for public roads and utilities. For example, utility easements allow utility companies to run plumbing and power lines through the private lands of homeowners.

There are many categories of easements, each of which suits a different purpose. In general, private easements concern land use rights between two or more private parties.

How Easements Can Be Created

Easements are usually created by a transfer in a deed. They may also be made through written documents such as:

• Wills in estate planning
• Private contracts

Written Requirement

Except as provided above with respect to implied and prescriptive easements, creating an easement requires writing. The writing involves the same formalities as the transferring or creating of other interests in land.

This type of easement often requires:

• A legal document that describes the property ownership
• The specific purpose of the easement and the affected use of the property line
• Notarized signatures in most states
• Proper recording at the county clerk’s office or register of deeds where the property is located

Like liens, recorded easements will show up during a title search.

Court-Ordered Easements

In limited cases, a court will create an easement by implying its existence based on the circumstances. Two common easements created by implication are:

• Easements of necessity: Often implied to give access to a landlocked piece of property
• Easements implied from quasi-easements: Based on a landowner’s prior use of part of their property for the benefit of another portion of their land

Alternative Methods of Creating Easements

Other methods of establishing easements include, but are not limited to:

• Prescriptive use (the routine, adverse use of another’s land)
• Easement by estoppel
• Easement by custom

Rights and Remedies Under an Easement

As a general rule, an easement holder has the right to do whatever is reasonably convenient or necessary to fully enjoy the easement granted. Yet, this is only true as long as it does not place an unreasonable burden on the servient land. For example, building a new shed on the land may be an encroachment if the easement only allows physical passage.

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 on the facts of each individual situation.

If a court determines that a servient estate is unduly burdened by unreasonable use of the easement, the owner has several potential legal remedies, such as:

• Court orders restricting the dominant owner to an appropriate enjoyment of the easement
• Monetary damages when the easement holder exceeds the scope of their rights and damages the servient estate
• In some cases, termination 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.

If interference with an easement causes a reduction in the property value of the dominant estate, courts may also award compensatory damages to the easement holder.

Transferability: What Happens After a Property Sale or Transfer?

In general, an easement appurtenant is transferred with the dominant property. This occurs even if transferability isn’t mentioned in the legal document. The document transferring the dominant estate may expressly provide that the easement shall not pass with the land. This may or may not be enforceable depending on the terms of the original easement and local laws.

Because easements in gross are treated as a right of personal enjoyment for the original holder, they are generally not transferable. However, several states have enacted statutes designed to facilitate the transfer of easements in gross.

The transfer of easements in gross may be permitted for commercial uses such as:

• Telephones
• Pipelines
• Transmission lines
• Railroads

Termination of Easements

Courts 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 problems by providing that the easement is permanent.

Although permanent easements are the norm, an easement can end in a number of ways, including:

• Expiration of the limited duration: Easements of a limited duration used to provide temporary access to a dominant estate will be terminated upon the completion of construction work.
• Purchase of the servient estate: An easement may be terminated when an individual owning the dominant estate purchases the servient estate.
• Easement holder release: An easement terminates when the holder of an easement releases their right in the easement (in writing) to the owner of the servient estate.
• Abandonment: As a general rule, not using an easement doesn’t constitute abandonment.
• Misuse or sale of a servient estate: It’s uncommon, but either of these may terminate an easement.
• Condemnation: Condemnation of an easement by a public authority can also terminate it. 

Condemnation is a particularly unique scenario. This means the government can step in to end the easement as long as it is permissible under the law.

For instance, suppose a state condemns a servient estate because of health and safety concerns. The land may no longer be accessible, given the priority of public health. This is for a purpose that conflicts with an easement that would otherwise allow access to that property. In this case, government action will terminate the existing easement.

Get Legal Help for Easements

The prevalence of easements and their nonpossessory nature creates a unique set of considerations. These considerations apply when creating, interpreting, and implementing an easement. It’s essential to have a basic understanding of the way easements are created while considering their scope, transferability, and termination.

A real estate attorney with easement experience can help set you on the right path.