An easement is the right or freedom to do something or the right to prevent someone else from doing something over the real property of another. At common law, an easement came to be treated as a property right in itself and is still treated as a kind of property by most jurisdictions. In some jurisdictions, another term for easement is equitable servitude, although easements do not have their origin in equity.
The right is often described as the right to use the land of another for a special purpose. Unlike a lease, an easement does not give the holder a right of "possession" of the property, only a right of use. It is distinguished from a licence that only gives one a personal privilege to do something even more limited on the land of another. An example of a license is the right to park a car in a parking lot with the consent of the parking lot owner. Licences in general can be terminated by the property owner much more easily than easements. This is similar to but not the same as a wayleave. Easements also differ from licences in that most easements ("easements appurtenant") are attached to and benefit another parcel of land, not a specific person. This means that a property that enjoys an easement over another will continue to enjoy the easement even if the property gets transferred to a different owner. Other easements ("easements in gross") benefit a specific person.
Easement concepts differ substantially from country to country, and in the U.S. from state to state. Historically, it was limited to the right-of-way and rights over flowing waters, although this is no longer true. Traditionally, it was a right that could only attach to an adjacent land and was for the benefit of all, not a specific person; this is also no longer true in many jurisdictions.
Easements may be considered public or private. A private easement is limited to specific individuals or entities such as the owner of an adjoining land. A public easement is one that grants the right to a large group of individuals or to the public in general, such as the easement on public streets and highways or of the right to navigate a river.
In the U.S., an easement appurtenant is one that benefits the dominant tenement (i.e. attached to adjoining land), as compared to an easement in gross that is personal to holder of the easement and does not pass automatically to another person when the easement holder's property is sold and bought.
An easement in gross is one that is attached to an individual person or legal entity rather than a parcel of real estate served by the easement. This easement can be personal (like an easement to use one's boat ramp) or commercial (like an easement given to a railway company to build and maintain a rail line across one's property) in nature. In earlier times, easements in gross were considered neither assignable nor inheritable, but today, most courts hold that commercially oriented easements in fee are freely alienable. This is not true in England and Wales where easements cannot be in gross. See also Profit-a-Prendre.
A floating easement is when there does not exist any fixed location, route, method or limit to the right of way. For example, a right of way may cross a field, without any visible path, or allow egress through another building for fire safety 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.
Where an easement is appurtenant (in England and Wales, all easements), it will typically require the existence of two parcels of land, known as tenements. There is the dominant tenement, which is the plot of land to which the benefit an appurtenant easement is attached. Second, there is the servient tenement, which is the plot of land which bears the burden of the easement.
For example, where a driveway is owned by house A, but the owners of house B are permitted to drive over it to gain access to their house, there is an easement of way, with house B the dominant tenement and house A the servient tenement.
A profit (or profit à prendre) is a right to take something off another person's land. At common law it was treated differently from an easement, something that is still the case in English law. In other jurisdictions a profit is treated as a special type of easement.
Examples of profits include the right to come onto the property of another and remove fruits, vegetables, and "fugacious minerals" (minerals that tend to be movable) such as gas or oil; by comparison, coal, which does not move, would not be considered a fugacious mineral. The rights of the profit-holder depend on the nature of the profit.
Easements may be created in a number of ways. In most of the United States, using someone else's property, for example, for ingress and egress over a certain number of years, regularly and without the consent of the property owner, can give the user the right to continue using the property for the same purpose for as long as the user wishes. This method of acquiring an easement is called a "prescriptive easement" or "easement by prescription."
In most of the United States, "prescriptive easement" cannot be used to acquire the right to protect a view over a neighboring property no matter how long a property owner has had a view over the neighbor's property. This concept, known as "ancient lights" in some common law jurisdictions, has recently been recognized in California.
Prescriptive easements can be contrasted with adverse possession, which involves the taking of complete title to land rather than just taking the right to use the property.
In England and Wales, much the same result is achieved but in a different way: if you are able to show that the easement has been used, as of right, for a period of 20 years, the law assumes that the right to use the easement must have been granted - either long in the past (since time immemorial) or more recently where the evidence has been lost (lost modern grant). This can be disproved, for example by showing that the owner of the land was incapable of consenting. This distinguishes this from adverse possession (by which the ownership of the land itself can be acquired by long user) which does not rely on the fiction of a supposed grant but instead on the fact of the use/possession of the land.
An easement may be implied or express. An express easement may be "granted" or "reserved" and is typically included in a document such as a deed or other officially recorded document, or incorporated by reference to a subdivision plan by "dedication", or in restrictive covenants in an owners' association agreement. For example, a "paper street" shown on an approved and recorded subdivision plan, but never improved to become an actual street, creates an express "easement by estoppel" whereby the grantor and abutters of the way cannot later deny the existence of the way or its potential benefits to others in the subdivision (e.g., for an underground drainage line). Moreover, courts typically refer to the intent of the parties in prescribing an easement based on prior use, according to Derek L. Haggerty of The Ohio State University Moritz College of Law.
Similarly, 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 parcel. There is an implied easement 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). This easement is extinguished upon termination of the necessity (for example, if a new public road is built adjacent to the landlocked tenement). An easement by necessity is distinguished from an easement by implication in that the former easement arises only when "strictly necessary," whereas the latter can arise when "reasonably necessary."
However, the landlocked owner might be required to obtain a license for a new commercial use or to cause damage during access (e.g., a logging road or blazed trails). Some states, also, frown on granting easements by necessity when the need was created by the owner's own actions, say, by selling off plots of land resulting in a landlocked parcel.
Some U.S. state statutes grant a permanent easement of access to any descendant of a person buried in a cemetery on private property.
Easements by prescription, also called prescriptive easements, are implied easements that give the easement holder a right to use another person's property for the purpose the easement holder has used the property for a certain number of years, which varies from state to state. Prescriptive easement is not the same as adverse possession, which allows a party to acquire title to real property by asserting possession over it for the statutory period. Requirements vary among states to successfully claim adverse possession. In California, for example, an adverse possessor is required to assert possession of the property AND pay all property taxes for at least five years. Prescriptive easements are a type of implied easement, in that they arise even though they are not expressly created or recorded. Unlike other implied easements, however, prescriptive easements are hostile (i.e., without the consent of the true property owner). Prescriptive easements do not convey the title to the property in question, only the right to utilize the property for a particular purpose. They often require less strict requirements of proof than fee simple adverse possession.
Once they become legally binding, easements by prescription hold the same legal weight as written or implied easements. Before they become binding, they hold no legal weight and are broken if the true property owner acts to defend his ownership rights. Easement by prescription is typically found in legal systems based on common law, 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. Generally, the use must be open (i.e. obvious to anyone), actual, continuous (i.e., uninterrupted for the entire required time period), and adverse to the rights of the true property owner. The use also generally must be hostile and notorious (i.e., known to others). Unlike fee simple adverse possession, prescriptive easements typically do not require exclusivity.
The period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws (usually based on the statute of limitations on trespass). Generally, if the true property owner acts to defend his 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 resets 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. In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement.
Government owned property held for common use 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.
Prescription may also be used to end an existing legal easement. For example, if a servient tenement holder were to erect a fence blocking a legally deeded right-of-way easement, the dominant tenement holder would have to act to defend his easement rights during the statutory period or the easement might cease to have legal force, even though it would remain a deeded document.
Right-of-way for access is among the most common easement by prescription.
In the United States, easements may be acquired by the government using its power of "eminent domain" in a "condemnation" proceeding in the courts. Note that in the U.S., 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.
A similar right to property would appear to exist in the law of England and Wales following the incorporation of the European Convention on Human Rights into English law, in that any deprivation of the rights of the owner of property must be "in accordance with law" as well as "necessary in a democratic society" and "proportionate".
Generally, mere non-use does not end an easement. One or more of the following factors may also have to be present:
Open and continuous trespassing upon an easement can lead to the extinguishment of an easement by prescription (see above), if no action is taken to cure the limitation over an extended period.
Adverse possession can result in a grant of rights in adversely possessed property which are 'taken' by the adverse possesser. For example, it is possible to adversely possess an easement, under the legal doctrine of prescription. This must also be done openly but need not be exclusive, and must outlast the same required statutory eviction period.
For example, given a deeded easement to use someone else's driveway to reach a garage, if a fence or permanently locked gate is established by the user of the easement that prevents access to the easement area by the property owner (and in some states if the user of the easement pays the property taxes on the area covered by the easement), and nothing is done to remove or circumvent the obstacle, and the statutory period expires; then the property included in the easement can be forfeit by the owner and accrue to the benefit of the adverse possessor.
Prescriptive easements for view, or the right to prevent a neighboring property owner from blocking the view across the property from a neighboring property, are not recognized in any U.S. state. This type of easement is referred to as "ancient lights" in some non-U.S. jurisdictions. An easement for view can be obtained by grant or reservation in most U.S. jurisdictions when property is conveyed.
Another type of restrictive easement is an historic preservation easement in which the owner of a historic structure agrees not to change specified historic elements of the facade.
The primary difference between location preservation ordinances and historic preservation easements is that local ordinances are discretionary and can be removed and a historic preservation easement runs with the property forever.
The value of easements imposed on historic properties already protected by local ordinances has recently been the subject of discussion by some people who have claimed that “where the subject property is located in a local historic district in which there are existing restrictions, regulations and controls, the terms of the easement are substantially redundant.”
Easement-encumbered properties within local historic districts should sell at a penalty relative to unencumbered properties in such districts because the easement typically imposes stricter controls than those contained in the usual preservation ordinance.
Easements often prohibit changes in property use or changes to significant architectural features while ordinances may permit such changes, subject to review and approval by a board of architectural review.
Further, unlike preservation ordinances, the easement typically contains no relief for "economic hardship" commonly found in governmental regulation of land use.
Easements are granted in perpetuity while historic district ordinances and local zoning practices change over time to reflect the dynamics of a changing political and/or economic interests of a community. An easement on a historic urban property is generally intended to preserve and conserve the historic, architectural, scenic and cultural values of a certified historic structure.
An easement donation reduces the basis in subsequent years by a fraction equal to the ratio of the value of the easement donation divided by the value of the property just before the easement donation takes place. This Basis Adjustment will cause a reduction from the owner’s depreciation schedule and or increase one’s capital gain upon sale of subject property.
Easements provide for judicial extinguishment in the event the historic structure is destroyed. The proceeds from the extinguishment are prorated at a fraction equal to the ratio of the value of the easement donation divided by the value of the property just before the easement donation takes place, and paid to the easement holding organization (not the landlord).
In the case of properties located in registered historic districts, the easement will also protect the historic district through limitations on uses that might jeopardize the architectural scale, style and sense of cultural identity of the district. The easement does this by restricting alteration and modification of the property in ways that would change its historic appearance or remove or replace historic building fabric. Such an easement typically contains provisions:
1) Prohibiting demolition.
2) Prohibiting or severely limiting subdivision.
3) Prohibiting or limiting further construction or development. Depending upon the property, the easement may also prohibit or limit use changes.
4) Prohibiting changes to exteriors (and on occasion interiors) of historically or architecturally significant buildings depending upon their significance, barring changes to facades visible from public ways or prohibiting changes without prior review by the holding organization.
5) Typically, easements on significant historic buildings will regulate changes to all facades, regulate how historic materials are replaced or repaired, prohibit or regulate placement of commercial or other signs and prohibit changes inconsistent with the building's historic character.
6) Requiring maintenance in conformity with agreed standards, typically those set by the US Department of Interior, to protect the historic structure.
7) Maintenance in excess of that ordinarily anticipated for comparable structures is typically required.
8) The cost of conducting "interruptive maintenance" out of the ordinary building maintenance cycle to correct what, in economic terms, are relatively minor defects (such as repainting or repair of deteriorated brickwork, cornices or window elements more frequently than would be required by market conditions) must be considered.
9) Requiring the owner to keep the property fully insured against casualty loss and to reconstruct improvements if they are destroyed. Again, not all preservation easements require the owner to insure the property or to replace it in the event of casualty.
10) Prohibiting dumping of trash.
11) Allowing for certain rights held by the holding organization, including periodic inspection, review and enforcement rights.
12) On structures within historic districts provide that any replacement structure must be constructed according to design plans approved by the easement holder.
Thus an easement is always linked to a specific property and can never be in gross, nor can an easement be for the benefit of the general public. Separate laws, such as the law of public rights of way, or customary rights, governs rights for the public in general.
There are three conditions for a user as of right to exist, which follows the Roman Law doctrine of nec vi, nec clam, nec precario (without force, without secrecy, without permission).
The question of how far the owner of the servient tenement may prevent prescription by giving a blanket permission to use the easement is uncertain. It was suggested by Warner J Rafique v The Trustees of The Walton Estate (1993) 65 P. & C.R. 356, that the owners of an easement of way could prevent the possibility of the acquisition of prescriptive rights by displaying a notice on the road in question stating that anybody using the road did so "only be permission of the Trustees and that that permission might be withdrawn at anytime."