Easement Defined

 

 

Easements

An easement is defined as a non-possessory right to use land which is possessed by another. [1]

 

 

Easements can be granted when for instance, one party’s parcel of land is landlocked and in order to enter and exit the landlocked parcel, the landlocked owner must cross through another property.

This type of easement can be an express easement in that Joe give express permission to Bob to cross through his property in order to enter onto his own.

However, the easement can also manifest without Joe giving express permission to Bob.

For instance, if Bob has historically crossed through Joe’s land to enter his own, Bob could claim that the easement is implied from prior existing use. [2] There is also easement by necessity. Suppose Bob’s only access to his landlocked property was by way of Toms property because Bob’s property sat on a mountain with no other means to enter the property but by passing across tom’s property. This type of easement would be an easement by necessity. [3]


Terminating an easement can be accomplished if the dominant tenement no longer requires the easement or abandons the easement. [4] For example, if the landlocked property was no longer land locked and Bob found the new access to be a shorter and easier rout, when Bob decides to stop using the existing easement to use the new rout, the easement can be said to be abandoned. This would terminate the easement.

Other ways to terminate an easement would be by prescription and by. Misuse. [5] Termination by prescription is when the servient tenement takes action to inhibit the dominant tenant’s use of the easement. An example of this would be building an addition to the house over the easement which blocks the dominant tenement access. [6]

Because the house addition would substantially block the easement and since this would be a long-term blockage, the easement is terminated by prescription. Amongst other means, the easement could also be terminated if the servient and dominant tenements were joined. Then, to transfer an easement the easement could be appurtenant to the land, meaning that it runs with the land. Because of this, if the title to the land changes, the easement continues to exist. [7] In addition, easements in gross, such as easements for utility poles are transferable and they too run with the land.  


References

[1] John G. Sprankling, Understanding property law 509 (2000).

[2] Id. at 513.

[3] Id. at 517.

[4] Id. at 533.

[5] Id. at 532.

[6] Id. at 536.

[7] Id. at 530.