How Easements Affect Real Estate

Welcome to the Easements section of FindLaw's Real Estate Law Center. An easement is a right of way that allows one party to use another’s real property. There are many different cases for land use under an easement:

• Someone may use an easement to drive over their neighbor's property to access their house on a shared driveway.
• Many utility companies have easements through property developments, which allow them to run utility lines and install services.
• An easement might allow someone to access a waterway or roadway for a period of time.

Perhaps you’re looking to obtain rights to use the property near you, or you’re wondering if an easement affects your own property interest. This section provides general information on property easements and related reasons for needing a real estate attorney.

The Parties to an Easement

When an easement involves a benefit tied to a natural person, it’s an easement in gross. That means its rights and obligations won’t carry over to future new owners. An easement in gross is between:

1. The easement holder (the person using the property); and
2. The owner of the property being used

An easement holder has a nonpossessory legal right to another person’s land. The easement holder’s use of another’s piece of land doesn’t grant them any ownership rights. For example, your next-door neighbor might grant you an easement for the specific purpose of allowing you to cross their driveway. Your use of the easement doesn’t make you an owner of your neighbor’s driveway.

An easement attached to a property runs with the land. That means it’ll appear on a title search, and its benefits and obligations will continue to new owners. Unlike an easement in gross, which is personal, an easement appurtenant is between:

1. A dominant estate or dominant tenement; and
2. A servient estate or servient tenement

A dominant estate has an easement right over a servient one. That means that the servient estate serves the property that dominates over it for a specific purpose. For example, a dominant tenement may enjoy the right to use power lines that pass through an adjacent private property. Here, the adjacent servient tenement is bound to accommodate the dominant tenement’s specific need.

Types of Easements

Affirmative Easements vs. Negative Easements

The majority of easements are considered either affirmative or negative. If you have an affirmative easement, it means:

• You have the right to do something on a piece of land; and
• The other party has the responsibility to do something with respect to the parcel

For example, an affirmative easement may:

• Give you the right to access a road on your neighbor's property; and
• Require the other party to allow access to the road

Blocking your access to the road violates the terms of the easement.

A negative easement is a legally binding agreement to not do something with respect to a parcel of land. For instance, someone who has a breathtaking view of the ocean may seek an easement to prevent her neighbor from obstructing that view. These are much less common since homeowners' associations often address these concerns.

Express Easements vs. Implied Easements

An express easement is usually created through a written agreement such as a deed, will, or contract. This is generally referred to as conveyance in a deed. As with wills and other legal agreements, it must be validated through the proper:

• Documentation;
• Signatures; and
• Delivery

In some rare instances, a court will base its decision on the existence of an implied easement based on circumstances. Suppose the only way to access a property is through another party's property. If the parties have previously been in agreement, then a court may create a formal easement based on this fact. On a related note, prescriptive easements can occur in cases of adverse possession under state law.

Private Easements vs. Public Easements

Private easements are between private parties. For example, a right-of-way agreement between neighbors may be a private easement. But public easements concern the right of access by society at large. For instance, they allow the public to pass a roadway or other open space area. Public easements can include utility easements, which grant access to water and power lines.

Easements normally do not affect property value as long as they don’t significantly interfere with the use of property. For example, utility lines hardly take up space and are necessary to operate buildings. In cases where an easement significantly disrupts one’s enjoyment of property, they may need to go to court to have it invalidated. If the government is taking private land without just compensation, an inverse condemnation lawsuit may help. Separately, we discuss the termination of private easements further below.

Preservation Easements vs. Conservation Easements

A conservation easement is a legal agreement between a property owner and another party (often a government entity) restricting development. Typically, these types of easements are sought out to protect natural resources, including animal habitats and open space. Usually, the landowner donates or sells the easement. But it must be for purely conservational purposes and carried out voluntarily. If certain conditions are met, the landowner who grants a conservation easement may be eligible for certain tax incentives.

Preservation easements are similar but intended to protect privately owned historic properties. The property owner who grants the easement will be restricted in what it can do with the property. But they will also receive certain tax incentives (specifically, it’s not taxed higher after the property is developed).

So, if a historic building has a conservation easement—often through charitable donations—the property owner must adhere to certain rules.

The Use and Termination of an Easement

Once created, the easement is legally binding and must be maintained. If you hold an easement on another party's property, you have the right to maintain and improve that parcel of land, as long as it doesn't disturb or otherwise interfere with the other party's property rights.

Easements may be terminated through:

• Legal action
• Another legal agreement
• Proving the "intent to abandon" the easement

Consider hiring a real estate lawyer to obtain legal advice about easements. Learn more about easements by clicking on one of the links below.