An easement is a term used when discussing property and ownership, but many do not understand how these agreements work. Technically speaking, it grants someone a right or use of a property that they do not own. A typical example of an easement would be a private road across a property or ranch owned by others to access one’s own property, which may be otherwise difficult or impossible to access because it is landlocked. An easement can also apply to utility workers crossing a property to access power lines or equipment. Unless the individual or company (known as the dominant estate) holds an easement, they do not legally have the right to access or cross a property (servient estate). While easements are typically affirmative, there is also a less common negative easement that may protect a non-owners view or access to light.
Creating an easement
Parties can draft an express easement as a written document or deed, but it could also be a will or contract. It requires the same protocols used to transfer ownership of land – the contract is signed by the involved parties, and the contract is delivered. Details may include:
- The contract may not be limited by a time or tied to an owner.
- The easement appurtenant may be tied to the parcel of land, which is referred to as “running with the land.”
- An easement in gross involves the owner or a specific entity, such as the utility mentioned above, and likely will not be void until the owner dies or the property is sold.
Typically, these are difficult to transfer without the servient estate owner’s consent.
An implied easement is not written because it is obvious or established by prior use. For example, a property may sell a parcel (lot A) that landlocks another parcel (lot B) they wish to keep. The original owner and seller may use the implied easement because they still need to access lot B.
Challenging an easement
Both sides can agree to terminate the easement or not renew it if there is a termination date. Challenging an easement in court can be complex and emotional, especially if it involves neighbors. Often it is helpful for involved parties to consult a real estate attorney before challenging an easement.