HOME

TheInfoList




An easement is a nonpossessory right to use and/or enter onto the
real property In England, English common law, real property, real estate, realty, or immovable property is land which is the property of some person and all structures (also called Land improvement, improvements or Fixture (property law), fixtures) integr ...
of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". It is similar to real covenants and
equitable servitude An equitable servitude is a term used in the law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced ...
s; in the United States, the Restatement (Third) of Property takes steps to merge these concepts as servitudes. Easements are helpful for providing pathways across two or more pieces of property, allowing individuals to access other properties or a resource, for example to
fish Fish are aquatic Aquatic means relating to water Water (chemical formula H2O) is an inorganic, transparent, tasteless, odorless, and nearly colorless chemical substance, which is the main constituent of Earth's hydrosphere and the ...

fish
in a privately owned pond or to have access to a public beach. An easement is considered as a property right in itself at
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
and is still treated as a type of property in most jurisdictions. The rights of an easement holder vary substantially among jurisdictions. Historically, the common law courts would enforce only four types of easement: *
Right-of-way Right of way is "the legal right, established by usage or grant, to pass along a specific route through grounds or property belonging to another", or "a path or thoroughfare subject to such a right". A similar ''right of access'' also exists on ...
(easements of way) * Easements of support (pertaining to excavations) * Easements of "light and air" * Rights pertaining to artificial waterways Modern courts recognize more varieties of easements, but these original categories still form the foundation of easement law.


Types


Affirmative and negative easements

An affirmative easement is the right to use another property for a specific purpose, and a negative easement is the right to prevent another from performing an otherwise lawful activity on their own property. For example, an affirmative easement might allow land owner A to drive their cattle over the land of B. A has an affirmative easement from B. Conversely, a negative easement might restrict land owner A from putting up a wall of trees that would block the adjacent land owner B's mountain view. A is subject to a negative easement from B.


Dominant and servient estate

As defined by Evershed MR in ''
Re Ellenborough Park was an English land law English land law is the law of real property in England and Wales. Because of its heavy historical and social significance, land is usually seen as the most important part of English property law. Ownership of land has ...
''
956 Year 956 ( CMLVI) was a leap year starting on Tuesday A leap year starting on Tuesday is any year with 366 days (i.e. it includes 29 February) that begins on Tuesday, 1 January, and ends on Wednesday, 31 December. Its dominical letters hence ar ...
Ch 131, an easement requires the existence of at least two parties. The party gaining the benefit of the easement is the dominant estate (or dominant tenement), while the party granting the benefit or suffering the burden is the servient estate (or servient tenement). For example, the owner of parcel A holds an easement to use a driveway on parcel B to gain access to A's house. Here, parcel A is the dominant estate, receiving the benefit, and parcel B is the servient estate, granting the benefit or suffering the burden.


Public and private easements

A private easement is held by private individuals or entities. A public easement grants an easement for a public use, for example, to allow the public an access over a parcel owned by an individual.


''Appurtenant'' and ''in gross'' easements

In the US, an easement ''appurtenant'' is one that benefits the dominant estate and "runs with the land" and so generally transfers automatically when the dominant estate is transferred. An appurtenant easement allows property owners to access land that is only accessible through a neighbor's land. Conversely, an easement ''in gross'' benefits an individual or a legal entity, rather than a dominant estate. The easement can be for a personal use (for example, an easement to use a boat ramp) or a commercial use (for example, an easement to a railroad company to build and maintain a rail line across property). Historically, an easement in gross was neither assignable nor inheritable, but commercial easements are now freely transferable to a third party. They are divisible but must be exclusive (the original owner no longer uses it and exclusive to easement holder) and all holders of the easement must agree to divide. If subdivided, each subdivided parcel enjoys the easement.


Floating easement

A floating easement exists when there is no fixed location, route, method, or limit to the
right of way Right of way is "the legal right, established by usage or grant, to pass along a specific route through grounds or property belonging to another", or "a path or thoroughfare subject to such a right". A similar ''right of access'' also exists on ...
. For example, a right of way may cross a field, without any visible path, or allow egress through another building for
fire safety #REDIRECT Fire safety#REDIRECT Fire safety Fire safety is the set of practices intended to reduce the destruction caused by fire BBQ. Fire is the rapid oxidation of a material in the exothermic chemical process of combustion, releasing hea ...
purposes. A floating easement may be public or private, appurtenant or in gross. One case defined it as "(an) easement defined in general terms, without a definite location or description, is called a floating or roving easement". Furthermore, "a floating easement becomes fixed after construction and cannot thereafter be changed".


Structural encroachment

Some legal scholars classify
structural encroachment A structural encroachment is a concept in real property law, in which a piece of real property In English common law, real property, real estate, realty, or immovable property is land which is the property Property (''latin: Res Privat ...
s as a type of easement.


Wayleave

In British
energy law Energy laws govern the use and taxation of energy In physics Physics is the that studies , its , its and behavior through , and the related entities of and . "Physical science is that department of knowledge which relates to t ...
and
real property law Property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alt ...
, a wayleave is a type of easement used by a
utility As a topic of economics Economics () is a social science Social science is the Branches of science, branch of science devoted to the study of society, societies and the Social relation, relationships among individuals within thos ...

utility
that allows a linesman to enter the
premises Premises are land and building A building, or edifice, is a structure with a roof and walls standing more or less permanently in one place, such as a house or factory. Buildings come in a variety of sizes, shapes, and functions, and have been ad ...
, "to install and retain their cabling or piping across private land in return for annual payments to the landowner". Like a
license A license (American English American English (AmE, AE, AmEng, USEng, en-US), sometimes called United States English or U.S. English, is the set of variety (linguistics), varieties of the English language native to the United States. Cur ...

license
or '' profit-à-prendre'', " Wayleave is normally a temporary arrangement and does not automatically transfer to a new owner or occupier." More generally, a wayleave agreement can be used for any service provider. In the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

United States
, an ''easement in gross'' is used for such needs, especially for permanent rights.


Access easement

An access easement provides access from a public right of way to a parcel of land. For example, if Zach and James own neighboring parcels of land, Zach's parcel may have easement rights to cross James's parcel from a public right of way. In such a case, Zach's "dominant" parcel would contain an access easement to cross James's "servient" parcel.


Creation

Easements are most often created by express language in binding documents. Parties generally grant an easement to another, or reserve an easement for themselves. Under most circumstances having a conversation with another party is not sufficient. Courts have also recognized creation of easements in other ways.


Express easement

An easement may be implied or express. An express easement may be "granted" or "reserved" in a
deed In common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Black's Law Dictiona ...

deed
or other legal instrument. Alternatively, it may be incorporated by reference to a subdivision plan by "dedication", or in a restrictive covenant in the agreement of an owners association. Generally, the doctrines of contract law are central to disputes regarding express easements while disputes regarding implied easements usually apply the principles of property law.


Implied easement

Implied easements are more complex and are determined by the courts based on the use of a property and the intention of the original parties, who can be private or public/government entities. Implied easements are not recorded or explicitly stated until a court decides a dispute, but reflect the practices and customs of use for a property. Courts typically refer to the intent of the parties, as well as prior use, to determine the existence of an implied easement. A government authority or private service provider may acquire an implied easement over private land by virtue of the public service it performs. For example, a local authority may have the responsibility of installing and maintaining the sewage system in an urban area. Merely by the fact that it has that responsibility, usually enshrined in some statute or local laws, may give the authority the right, by virtue of an implied easement, to enter private property to carry out installation and maintenance. The location of the easement will not usually be described precisely, but its general position will be defined by the service route (i.e., the sewer pipes in this example). Power and water lines may also have implied easements linked to them, but drainage and stormwater systems are commonly precisely defined in location and recorded in the title documents for private land.


Easement by necessity

Despite the name, necessity alone is an insufficient claim to create any easement. Parcels without access to a public way may have an easement of access over adjacent land if crossing that land is ''absolutely necessary'' to reach the
landlocked parcelA landlocked parcel is a real estate plot that has no legal access to a public right of way Right of way is "the legal right, established by usage or grant, to pass along a specific route through grounds or property belonging to another", or "a p ...
and there has been some original intent to provide the lot with access, and the grant was never completed or recorded but is thought to exist. A court order is necessary to determine the existence of an easement by necessity. To obtain this generally the party which claims the easement files a lawsuit, and the judge weighs the relative damage caused by enforcing an easement against the servient estate against the damage to the dominant estate if the easement is found not to exist and is thus landlocked. Because this method of creating an easement requires imposing a burden (the easement) upon another party for the benefit of the landlocked owner, the court looks to the original circumstances in weighing the relative apportionment of benefit and burden to both lots in making its equitable determination whether such easement shall be created by the court. This method of creating an easement, being an active creation by a court of an otherwise non-existent right, may be automatically extinguished upon termination of the necessity (for example, if a new public road is built adjacent to the landlocked tenement or another easement is acquired without regard to comparison of ease or practicality between the imposed easement and any valid substitute). There is also an unwritten form of easement referred to as an implied easement or easement by implication, arising from the original subdivision of the land for continuous and obvious use of the adjacent parcel (e.g., for access to a road, or to a source of water) such as the right of lot owners in a subdivision to use the roadway on the approved subdivision plan without requiring a specific grant of easement to each new lot when first conveyed. An easement by necessity is distinguished from an ''easement by implication'' in that the easement by necessity arises only when "strictly necessary", whereas the easement by implication can arise when "reasonably necessary". Easement by necessity is a higher standard by which to imply an easement. In India, easement of necessity could be claimed only in such cases where transfer, bequeathment or partition necessitates such claim. As an example, some U.S. state statutes grant a permanent easement of access to any descendant of a person buried in a cemetery on private property. In some states, such as New York, this type of easement is called an easement ''of'' necessity.


Easement by prior use

An easement may also be created by prior use. Easements by prior use are based on the idea that land owners can intend to create an easement, but forget to include it in the
deed In common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Black's Law Dictiona ...

deed
. There are five elements to establish an easement by prior use: # Common ownership of both properties at one time # Followed by a severance # Use occurs before the severance and afterward # Notice ## Not simply visibility, but apparent or discoverable by reasonable inspection (e.g. the hidden existence of a sewer line that a plumber could identify may be notice enough) # Necessary and beneficial ## Reasonably necessary ## Not the "strict necessity" required by an easement by necessity


Example

A owns two lots. One lot has access to a public street and the second is tucked behind it and fully landlocked. A's driveway leads from the public street, across the first lot and onto the second lot to A's house. A then sells off the first lot but forgets to reserve a driveway easement in the deed. originally had common ownership of both properties. also used the driveway during this period. A then severed the land. Although A did not reserve an easement, the driveway is obviously on the property and a reasonable buyer would know what it is for. Finally, the driveway is reasonably necessary for a residential plot; how else could A get to the street? Here, there is an implied easement.


Easement by prescription

Easements by prescription, also called prescriptive easements, are implied easements granted after the dominant estate has used the property in a hostile, continuous and open manner for a statutorily prescribed number of years. Prescriptive easements differ from adverse possession by not requiring exclusivity. Once they become legally binding, easements by prescription hold the same legal weight as written or implied easements. But, before they become binding, they hold no legal weight and are broken if the true property owner takes appropriate acts to defend their ownership rights. Easement by prescription is typically found in legal systems based on
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
, although other legal systems may also allow easement by prescription. Laws and regulations vary among local and national governments, but some traits are common to most prescription laws: * ''open'' and ''notorious'' (i.e., obvious to anyone) *''actual'', ''continuous'' (i.e., uninterrupted for the entire required time period); this does not necessarily require use daily, weekly, etc. *''adverse'' to the rights of the true property owner *''hostile'' (i.e., in opposition to the claim of another; this can be accidental, not "hostile" in the common sense) *''continuous'' for a period of time defined by statute or appellate case law Unlike fee simple adverse possession, prescriptive easements typically do not require ''exclusivity''. In states that do, such as Virginia, the exclusivity requirement has been interpreted to mean that the prescriptive user must use the easement in a different way from the general public, i.e., a use that is "exclusive" to that user. The period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws (sometimes based on the
statute of limitations A statute of limitations, known in civil law (legal system), civil law systems as a prescriptive period, is a law passed by a legislature, legislative body to set the maximum time after an event within which legal proceedings may be initiated. In t ...
on trespass). Generally, if the true property owner acts appropriately to defend their property rights at any time during the required time period the hostile use will end, claims on adverse possession rights are voided, and the continuous use time period will be reset to zero. In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal property owner, the prescriptive easement may become a regular or implied easement rather than a prescriptive easement and immediately becomes binding. An example of this is the lengthy
Irish Irish most commonly refers to: * Someone or something of, from, or related to: ** Ireland, an island situated off the north-western coast of continental Europe ** Northern Ireland, a constituent unit of the United Kingdom of Great Britain and North ...

Irish
Lissadell House rights of way case heard since 2010, that extended long-standing consents given to individuals into a public right of way. In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement. Government- or railroad-owned property is generally immune from prescriptive easement in most cases, but some other types of government owned-property may be subject to prescription in certain instances. In New York, such government property is subject to a longer
statute of limitations A statute of limitations, known in civil law (legal system), civil law systems as a prescriptive period, is a law passed by a legislature, legislative body to set the maximum time after an event within which legal proceedings may be initiated. In t ...
of action, 20 years instead of 10 years for
private property Private property is a legal designation for the ownership of property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the prope ...
. In most U.S. jurisdictions, a prescriptive easement can only be determined for an ''affirmative'' easement not a ''negative'' easement. In all U.S. jurisdictions, an ''easement for view'' (which is a negative easement) cannot be created by prescription. Prescription may also be used to end an existing legal easement. For example, if a servient tenement (estate) holder were to erect a fence blocking a legally deeded right-of-way easement, the dominant tenement holder would have to act to defend their easement rights during the statutory period or the easement might cease to have legal force, even though it would remain a deeded document. Failure to use an easement leading to loss of the easement is sometimes referred to as "non-user".


Quebec

Under the
civil law Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
of
Quebec ) , image_shield=Armoiries du Québec.svg , image_flag=Flag of Quebec.svg , coordinates= , AdmittanceDate=July 1, 1867 , AdmittanceOrder=1st, with New Brunswick ("Hope restored") , image_map = New Brunswick in Canada 2.svg , ...

Quebec
possessors with the animus (will) to be owners can acquire a right of ownership (or to a dismemberment of ownership if animus is to inclined) as long as the nature of possession is peaceful, continuous, public and unequivocal throughout. (According to article 2922 of the
Civil Code of Quebec The ''Civil Code of Quebec'' (CCQ, french: Code civil du Québec) is the civil code A civil code is a codification of private law relating to property law, property, family law, family, and law of obligations, obligations. A jurisdiction that ...
or CCQ) the prescribed period is 10 years (2917–2920 CCQ), except as otherwise provided by law. (2918 sets a different time for unregistered property. Reduced from 30 years.) Exceptions to prescription: Possession cannot establish a servitude under 1181 CCQ, but non-use of a servitude will extinguish it.


Louisiana

In the state of
Louisiana Louisiana (Standard French Standard French (in French: ''le français standard'', ''le français normé'', ''le français neutre'' eutral Frenchor ''le français international'' nternational French is an unofficial term for a standard ...

Louisiana
, a mixed legal jurisdiction with strong civil law roots, prescription can be either acquisitive or liberative, both of which involve the creation or extinguishing of rights over time. ''Acquisitive prescription'' in Louisiana is analogous to the common law idea of adverse possession. As defined in La. C.C. Art. 3446, "acquisitive prescription is a mode of acquiring ownership or other
real right Ius in re, or jus in re, under civil law Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as En ...
s by possession for a period of time." Unlike the common law adverse position, Louisiana's acquisitive prescription is not a procedural bar to recovering property but the creation of a new ownership right in the property. Time periods for acquisitive prescription depend on whether the property is movable or immovable and whether the property is possessed in good faith (possessor believes they have title to the property) or in bad faith. ''Liberative prescription'' is analogous to the common law statute of limitations. As defined in La. C.C. Art. 3447, "liberative prescription is a mode of barring of actions as a result of inaction for a period of time." It can be renewed by the party who has gained its protection. For example, a debtor's admission that a debt is still owed renews the creditor's claim against the debtor and starts the tolling of another prescriptive period. This differs from peremption, which is a fixed time for the existence of a legal right and which cannot be renewed like liberative prescription.


Easement by estoppel

When a property owner misrepresents the existence of an easement while selling a property and does not include in the deed to the buyer an express easement over an adjoining property that the seller owns, a court may step in and create an easement. Easements by
estoppel Estoppel is a judicial device in common law legal systems whereby a court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and ...
generally look to any promises not made in writing, any money spent by the benefiting party in reliance on the representations of the burdened party, and other factors. If the court finds that the buyer acted reasonably and in good faith and relied on the seller's promises, the court may create an easement by estoppel. For example: Ray sells land to Joe on the promise that Joe can use Ray's driveway and bridge to the main road at any time, but Ray does not include the easement in the deed to the land. Joe, deciding that the land is now worth the price, builds a house and connects a garage to Ray's driveway. If Ray (or his successor) later decides to gate off the driveway and prevent Joe (or Joe's successor) from accessing the driveway, a court would likely find an easement by estoppel. Because Joe purchased the land believing that there would be access to the bridge and the driveway and Joe then paid for a house and a connection, Joe can be said to rely on Ray's promise of an easement. Ray materially misrepresented the facts to Joe. In order to preserve equity, the court will likely find an easement by estoppel. On the other hand, if Ray had offered access to the bridge and driveway ''after'' selling Joe the land, there may not be an easement by estoppel. In this instance, it is merely inconvenient if Ray revokes access to the driveway. Joe did not purchase the land and build the house in reliance on access to the driveway and bridge. Joe will need to find a separate theory to justify an easement.


Easement by the government

In the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

United States
, easements may be acquired (bought) by the government using its power of
eminent domain Eminent domain (United States, Philippines), land acquisition (India, Malaysia, Singapore), compulsory purchase/acquisition (Australia, New Zealand, Republic of Ireland, United Kingdom), resumption (Hong Kong, Uganda), resumption/compulsory acqui ...
in a ''condemnation'' proceeding in the courts. Note that in the United States, in accordance with the Fifth Amendment to the U.S. Constitution, property cannot simply be taken by the government unless the property owner is compensated for the fair market value of what is taken. This is true whether the government acquires full ownership of the property ("fee title") or a lesser property interest, such as an easement. For example, utility providers are typically granted jurisdiction-wide easement to access and maintain their existing infrastructure. In the law of England and Wales following the incorporation of the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
into English law, any deprivation of the rights of the owner of property must be "in accordance with law" as well as "
necessary in a democratic society Necessary or necessity may refer to: * Need Animal, A need is something that is wikt:necessary, necessary for an organism to live a healthy life. Needs are distinguished from wants. In the case of a need, a deficiency causes a clear adverse outco ...
" and "proportionate".


Easements distinguished from licenses

Licenses to use property in a nonpossessory manner are similar to but more limited than easements and are, under certain circumstances, transformed into easements by the courts. Some general differences do exist: *A license is often revocable and is typically limited in duration *A license is often uninsurable *A license is often not recorded *A license is often vested in one person Easements are regarded as a broader and more powerful than licenses, and licenses that have any of the properties of an easement may be bound by the higher standards for termination granted by an easement.


Termination

A party claiming termination should show one or more of the following factors: * Release: agreement to terminate by the grantor and the grantee of the easement * Expiration: the easement reaches a formal expiration date * Abandonment: the holder demonstrates ''intent'' to discontinue the easement * Merger: When one owner gains title to both dominant and servient tenement ** Mortgaged properties with merged easements that then go into foreclosure can cause the easement to revive when the bank takes possession of part of the dominant estate * Necessity: If the easement was created by necessity and the necessity no longer exists *
Estoppel Estoppel is a judicial device in common law legal systems whereby a court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and ...
: The easement is unused and the servient estate takes some action in reliance on the easement's termination * Prescription: The servient estate reclaims the easement with actual, open, hostile and continuous use of the easement * Condemnation: The government exercises eminent domain or the land is officially condemned. Depending on the situation this could take a number of forms. A government can condemn a plot of land and remove an easement even if the easement is in favor of the adjoining property owner.


Rights

The following rights are recognized of an easement: *
Right to light Right to light is a form of easement in English law that gives a long-standing owner of a building with windows a right to maintain the level of illumination (lighting), illumination. The right was traditionally known in the Common law, Anglo-Ameri ...
, also called solar easement. The right to receive a minimum quantity of light in favour of a window or other aperture in a building which is primarily designed to admit light. *
Aviation easement Air rights are the property interest in the "space" above the earth's surface. Generally speaking, owning, or renting, land or a building includes the right to use and develop the space above the land without interference by others. This legal con ...
. The right to use the airspace above a specified altitude for aviation purposes. Also known as ''aviation easement'', where needed for low-altitude spraying of adjacent agricultural property. * Railroad easement. * Utility easement, including: **
Storm drain A storm drain, storm sewer (United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain,Usage is mixed. The Guardian' and Telegraph' use Britain as a synonym for the Unite ...

Storm drain
or storm water easement. An easement to carry rainwater to a river, wetland, detention pond, or other body of water. **
Sanitary sewer A sanitary sewer is an underground pipe or tunnel system for transporting sewage Sewage (or domestic sewage, domestic wastewater, municipal wastewater) is a type of wastewater Wastewater is generated after the use of fresh water W ...
easement. An easement to carry used water to a sewage treatment plant. **
Electrical power Electric power is the rate, per unit time, at which electrical energy Electrical energy is energy derived from electric potential energy or kinetic energy. When used loosely, ''electrical energy'' refers to energy that has been converted ''f ...
line easement. **
Telephone line A telephone line or telephone circuit (or just line or circuit industrywide) is a single-user circuitCircuit may refer to: Science and technology Electrical engineering * Electrical circuit, a complete electrical network with a closed-l ...

Telephone line
easement. **
Fuel gas Fuel gas is any one of a number of fuels that under ordinary conditions are gaseous. Many fuel gases are composed of hydrocarbons (such as methane or propane), hydrogen, carbon monoxide, or mixtures thereof. Such gases are sources of potential h ...

Fuel gas
pipe easement. * Sidewalk easement. Usually sidewalks are in the public right-of-way. * View easement. Prevents someone from blocking the view of the easement owner, or permits the owner to cut the blocking vegetation on the land of another. * Driveway easement, also known as ''easement of access''. Some lots do not border a road, so an easement through another lot must be provided for access. Sometimes adjacent lots have "mutual" driveways that both lot owners share to access garages in the backyard. The houses are so close together that there can only be a single driveway to both backyards. The same can also be the case for walkways to the backyard: the houses are so close together that there is only a single walkway between the houses and the walkway is shared. Even when the walkway is wide enough, easement may exist to allow for access to the roof and other parts of the house close to a lot boundary. To avoid disputes, such easement should be recorded in each property
deed In common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Black's Law Dictiona ...

deed
. *
Beach A beach is a landform alongside a body of water which consists of loose particles. The particles composing a beach are typically made from Rock (geology), rock, such as sand, gravel, shingle beach, shingle, pebbles, etc., or biological so ...

Beach
access. Some jurisdictions permit residents to access a public lake or beach by crossing adjacent private property. Similarly, there may be a private easement to cross a private lake to reach a remote private property, or an easement to cross private property during high tide to reach remote beach property on foot. * Dead end easement. Sets aside a path for pedestrians on a dead-end street to access the next public way. These could be contained in covenants of a homeowner association, notes in a subdivision plan, or directly in the deeds of the affected properties. * Recreational easement. Some U.S. states offer tax incentives to larger landowners if they grant permission to the public to use their undeveloped land for recreational use (not including motorized vehicles). If the landowner posts the land (i.e., "No Trespassing") or prevents the public from using the easement, the tax abatement is revoked and a penalty may be assessed. Recreational easement also includes such easements as equestrian, fishing, hunting, hiking, trapping, biking (e.g., Indiana's
Calumet Trail 300px, Looking east from an access point along a section of the Calumet Trail in June The Calumet Trail is an east-west bicycle and multiuse recreational trail in the Calumet region of northwestern Indiana Indiana () is a U.S. state in the ...

Calumet Trail
) and other such uses. *
Conservation easement In the United States, a conservation easement (also called conservation covenant, conservation restriction or conservation servitude) is a power invested in a qualified private land conservation organization (often called a "land trust") or gover ...
. Grants rights to a
land trust Land trusts are nonprofit organizations which own and manage land, and sometimes waters. There are three common types of land trust, distinguished from one another by the ways in which they are legally structured and by the purposes for which the ...
to limit development in order to protect the environment. * Historic preservation easement. Similar to the conservation easement, typically grants rights to a historic preservation organization to enforce restrictions on alteration of a historic building's exterior or interior. * Easement of
lateral and subjacent support Lateral and subjacent support, in the law of property law, property, describes the right a landowner has to have that land physically supported in its natural state by both adjoining land and underground structures. If a neighbor's earthworks (engi ...
. Prohibits an adjoining land owner from digging too deep on his lot or in any manner depriving his neighbor of vertical or horizontal support on the latter's structures, e.g., buildings, fences, etc. * Communications easement. This easement can be used for wireless communications towers, cable lines, and other communications services. This is a private easement and the rights granted by the property owner are for the specific use of communications. * Ingress/egress easement. This easement can be used for entering and exiting a property through or over the easement area. This might be used for a person's driveway, going over another person's property.


Trespass upon easement

Blocking access to someone who has an easement is a
trespass Trespass is an area of criminal law Criminal law is the body of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A sy ...

trespass
upon the easement and creates a cause of action for civil suit. For example, putting up a fence across a long-used public path through private property may be a trespass and a court may order the obstacle removed. Turning off the water supply to a downstream neighbor may similarly trespass on the neighbor's water easement. Open and continuous trespassing upon an easement can lead to the
extinguishment Extinguishment is the destruction of a right Rights are law, legal, social, or ethics, ethical principles of Liberty, freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people ac ...
of an easement by prescription (see above) if no action is taken to cure the limitation over an extended period.


Torrens title registration

Under the
Torrens title system
Torrens title system
of land ownership registration, easements and
mortgages A mortgage loan or simply mortgage () is a loan In finance, a loan is the lending of money by one or more individuals, organizations, or other entities to other individuals, organizations etc. The recipient (i.e., the borrower) incurs a ...
are recorded on the titles kept in the central
land registry Land registration is any of various systems by which matters concerning ownership Ownership is the state or fact of exclusive right In Anglo-Saxon law Anglo-Saxon law (Old English Old English (, ), or Anglo-Saxon, is the earliest recorde ...
or
cadastre A cadastral map (shortened to cadastre or cadaster) is a comprehensive land recording of the real estate Real estate is property consisting of land and the buildings on it, along with its natural resources such as crops, minerals or water; i ...

cadastre
. Any unrecorded easement is not recognised and no easement by prescription or implication may be claimed. In Australia, easements may only be created by prescription or implication under Torrens land if it was created prior to that land being brought under the Torrens system, or there is an exception to indefeasibility.


See also

*
Air rights Air rights are the property interest in the "space" above the earth's surface. Generally speaking, owning, or renting, land or a building A building, or edifice, is a structure with a roof and walls standing more or less permanently in one pla ...
*
Countryside and Rights of Way Act 2000 In general, a rural area or a countryside is a geographic area that is located outside town A town is a human settlement In geography Geography (from Greek: , ''geographia'', literally "earth description") is a field o ...
(England and Wales) *
Crown land Crown land (sometimes spelled crownland), also known as royal domain, is a territorial area belonging to the monarch, who personifies . It is the equivalent of an and passes with the monarchy, being inseparable from it. Today, in s such as Cana ...
(see "logging and mineral rights" under
Canada Canada is a country in the northern part of North America North America is a continent A continent is any of several large landmasses. Generally identified by convention (norm), convention rather than any strict criteria, ...

Canada
) *
Easements in English law Easements in English law are certain rights in English land law that a person has over another's land. Rights recognised as easements range from very widespread forms of rights of way, most rights to use service conduits such as telecommunications c ...
*
Fee tail In English common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Black's Law Di ...
* ''
M.P.M. Builders, LLC v. Dwyer ''M.P.M. Builders, LLC v. Dwyer'', 442 Mass. 87, 809 N.E.2d 1053 (2004), was a legal case, case decided by the Massachusetts Supreme Court that first adopted the Restatement of the law, Restatement Third of Servitudes for the relocation of easemen ...
'' *
Party wall A party wall (occasionally parti-wall or parting wall, also known as common wall or as a demising wall) is a dividing partition between two adjoining buildings that is shared by the occupants of each residence or business. Typically, the builder l ...
, often subject to easement * Prior appropriation water rights *
Right of public access to the wilderness The freedom to roam, or "everyman's right", is the general public's right to access certain public or privately owned land, lakes, and rivers for recreation and exercise. The right is sometimes called the right of public access to the wilderness o ...
*
Riparian water rights Riparian water rights (or simply riparian rights) is a system for allocating water among those who possess land along its path. It has its origins in English common law. Riparian water rights exist in many jurisdictions with a common law herit ...
*
Servitude in civil law A servitude is a qualified beneficial interest In finance Finance is the study of financial institutions, financial markets and how they operate within the financial system. It is concerned with the creation and management of money and inve ...
*
Turbary Turbary is the ancient right to cut turf Sod, also known as turf, is grass Poaceae () or Gramineae () is a large and nearly ubiquitous family In , family (from la, familia) is a of people related either by (by recognized bir ...


References


External links

* http://caselaw.lp.findlaw.com/data/constitution/amendment05/16.html (Legal Cases regarding Real Estate Taking and Easements)
Deed Of Easement Documents (UK)
Deed documents outlining easements for UK properties
Irish law on easements: Part 8 of the Land and Conveyancing Law Reform Act 2009
* https://www.justipedia.com/definition/13490/appurtenant-easement Definition of Appurtenant Easement {{Authority control Real property law Freedom to roam Land tenure