What is an easement?
Updated April 4, 2022
An easement gives another party the right to access a property without the owner’s permission.
Specified in the title, easements are granted for a number of reasons, including:
- Allowing utility companies access to the property to make repairs
- Allowing owners of adjoining properties to cross a property so they can access their own property
- Giving the public the right to cross a private property to access a public beach
Easements, which have been used for centuries, may be issued for everything from sidewalks and views, and to protect everything from conservation lands to historic districts.
An easement allows a separate party to cross a property they don't own to get to public places like parks and beaches. Photo: Pasja1000/Pixabay
They can be drawn up to allow someone access to the property or to forbid someone from doing something on the property.
There are two parties to every easement:
- Dominant estate, the party that benefits from the easement and is allowed to use the other person’s property
- Servient estate, the party that is required to allow the non-owner or non-owners to use the property
There are many types of easements, and the purpose of each is specified in the property’s title documents. They include:
- Private easements, created by the property owner, who either sells them or grants them to another party. These allow specific people to use the property for specific purposes. The property owner is not obligated to grant them, and they are supposed to be listed on the title. The easement carries through to future sales.
- Public easements grant the use of the land to the general public.
- Easements by necessity, which also are called access easements, allow a party to access a property that otherwise could not be accessed without crossing the property. The owner of a landlocked property, for instance, would benefit from such an easement.
- Prescriptive easements are created without permission of the property owner and are allowed by the courts, if the other party or parties have been using the property in such a way for a specified number of years, which varies by state. If neighbors, for example, have been parking in a private common access for a number of years and the property owner takes no action to stop them, the court may grant a prescriptive easement that allows them to continue doing this action because it is considered a necessity.
- Adverse possession is similar to a prescriptive easement, but it is used in cases where trespassing has been occurring for a long time. The key difference is not one of necessity—the neighbors really don’t need to park in the common driveway—but their doing so is with the intent to claim ownership.
- Easement Appurtenant is an easement that is tied to the property, not the property owner, and remains in place even when the property changes ownership. It remains because it benefits the property.
- Easement in gross is an easement that is tied to a specific person or entity, not the property. Typically irrevocable, it remains in effect until the property owner dies or the home is sold. The seller is not obligated to transfer the easement to the new owner; likewise, the new owner can refuse to accept the easement. What’s more, the party the easement was created for cannot transfer it to another party.
- Floating easements, which may be public or private, do not put limits on the right-of-way granted or the specific path that must be used for access. In a field, for example, there may be a floating easement that allows the public to cross that land to get to the beach but doesn’t identify a specific route for them to do so.
- Easements by estoppel are created by judicial law and enforced by the courts. They are issued when a property owner, during the sale, misrepresents the existence of an easement that allows access to an adjoining property and fails to include it in the deed. If the court determines that the buyer was acting in good faith, it may create an easement by estoppel that allows the access.