Definition
An easement is the right to use the land of another for a specific purpose. There is no such thing as an easement per se. The easement must be for a specific purpose. Its use is limited to that purpose.
The most common uses are for access and utilities.
Unless expressly limited, an easement is presumed to be both perpetual and non-exclusive. If the easement is non-exclusive, the owner can grant multiple easements to use the same property. If the easement is exclusive, only one easement is allowed. In any event, the owner retains ownership of the property and the right to use the property in any way that is consistent with the easement.
Types of Easements
The first type of easement is an "appurtenant easement". An appurtenant easement benefits land. It can only be used by that land.
The land, which benefits from the easement, is called the "dominant tenement." The land, which is burdened by the easement, is called the "servient tenement."
If the dominant tenement is divided into more than one parcel, each parcel has the right to use the easement. On the other hand, if the owner of the dominant tenement acquired adjoining property, the adjoining property cannot use the easement because the easement is not appurtenant to it.
When an appurtenant easement is created, it "runs with the land." This means that the easement continues to benefit the dominant tenement regardless of whether it is specifically included in subsequent deeds. It cannot be severed from the dominant tenement.
The second type of easement is an "easement in gross". An easement in gross does not benefit land. It benefits a person or business. In most situations, an easement in gross will benefit a utility company.
An easement in gross is not generally transferable.
How Easements Are Created
The preferable way of creating an easement is through express grant or reservation. The owner of the property grants the right to use that property to another by written document. That document is acknowledged and recorded. If the easement is appurtenant, the document should specify the dominant tenement.
Easements in a subdivision may be created on the face of the plat or through a declaration recorded with the plat. The deeds of lots in the subdivision may not mention these easements. However, the easements have been validly created by the previously recorded plat or declaration.
The third way of creating an easement is through an implied grant or reservation. In this situation the easement is not mentioned on any of the documents in the chains of title.
An implied easement is created when there is common ownership of the dominant and servient tenements. Severance of the common ownership, obvious use of the easement at the time of severance, and the easement is necessary for the dominant tenement.
An easement may also be established through prescription. A prescriptive easement arises when someone uses the property of another without authority and in an open and continuous manner for at least ten years.
If all else fails, an easement may be established by necessity. If a property is landlocked and there is no reasonable means of access to it, the owner may establish an easement by necessity through the court. The owner must, however, pay to the owner of the land over which the easement will run the market value of that land as established by the court.
Condemnation may also create an easement. When land is condemned, the condemning power obtains only an easement to use the property for the purpose specified, unless it needs to obtain the fee title or there is statutory authority to obtain the fee title.
How Easements Are Terminated
An easement is terminated by a written release signed by all of the parties who have the right to use the easement.
An easement is extinguished by merger. This occurs when there is common ownership of both the dominant and servient tenements.
An easement is lost through abandonment. If an easement is not used for a significant period of time and the holder of the easement does things that are clearly inconsistent with future use of the easement, the easement will be abandoned. It is important to point out that non-use if not, of itself, sufficient to abandon an easement. There must also be some affirmative acts taken by the holder of the easement to confirm abandonment.
Policy Coverages
There are four ways that easements come within the scope of title insurance coverage.
First, we may be asked to insure a specific easement as appurtenant to the insured property.
Second, in ALTA standard policies we must except from coverage all easements encumbering the insured property, which are disclosed of record.
Third, in ALTA extended coverage policies, we must except from coverage all easements, recorded and unrecorded.
Fourth, all ALTA policies insured against lack of a right of access to the insured property.
Easement Claim Problems
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No interest in
property - The person granting the easement has no interest in the property over which the easement is created.
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Not reserved in prior
conveyance - The grantor of the easement did own the servient tenement but has previously conveyed it. When the servient tenement was conveyed, the grantor failed to reserve or except an easement for the dominant tenement. (An implied easement may result if the off-record elements set forth above are met.)
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Subject to liens - The grantor has an interest in the servient tenement but it is subject to a mortgage, deed of trust, contract, unpaid real estate taxes or other lien. If the lien is foreclosed, the easement will be extinguished.
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Not appurtenant - The easement is validly created but is not appurtenant to the property insured.
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Easement use - The easement is for access only. The easement is insured for access and utilities.
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Easement does not
connect - The easement is valid as insured. However, it has breaks in it or does not connect to a public road.
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Width not specified - The easement is generally, but not specifically, located over a parcel of land.
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Landlocked - The insured property does not have access to a public road.
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Vacated street - The vacation of a street extinguishes the public easement but does not affect any private easement that may exist. Title to the vacated street will usually, but not always, revert to the adjoining property owners.
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Railroad right-of-way
- Property acquired by a railroad for right-of-way purposes is typically only an easement. When the railroad use is abandoned the easement is terminated. Title to the abandoned right-of-way may vest in either the original grantor to the railroad or the adjoining property owners.
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