Before investing in real estate, you should be aware of the easements it may be subject to. In this WealthHow article, we shall give you a brief idea of what is easement and its types.
For Your ‘Ease’
Before purchasing any property, seeking legal help to be aware of any easements, which burdens or gives any benefit to the property, will be beneficial, for their existence does have an effect on the property prices.
A quick Google search of the term easement gives us this definition: a right to cross or otherwise use someone else’s land for a specified purpose’. It is nothing but grant of a property interest, which is not in the nature of ‘possession’. Well, so much so for an academic definition, but to understand the term easement, firstly, it is necessary to understand certain related terms―the two parcels of land. The following terms are used frequently while addressing the issue of easement, and they need to be understood thoroughly.
Dominant Estate/Tenement – An estate, whose owners are entitled to the beneficial use of another’s property.
Servient Estate/Tenement – An estate that carries the burden of easement.
There are various types of easements, classifiable on various basis. While these rights might become a topic of dispute, it is advisable, in case of any dealings in real estate, to seek legal help. Discuss with your real estate agent and attorney, in case you’re planning to buy a house. Let’s see some basic types along with examples.
Easement in Gross
It gives a personal right to an individual, and has no connection to the other land, which means the existence of dominant estate is not necessary.
- Cathy and Stella are neighbors. Cathy owns a well that is located on her property. Stella wishes to use the well, so she strikes a deal with Cathy.
- Cathy gives Stella the right to use the well on her property for a certain fee. This is a personal right given to Stella, and it remains with her even if she moves away.
- It is an agreement between both parties and cannot be transferred to any other party, unless otherwise agreed. Which means, Stella cannot transfer that right to any other party without the permission of Cathy.
As against an easement in gross, this type benefits another land (dominant estate), instead of simply benefiting a particular individual. The right sticks to the land permanently and benefits the owner of the property. Existence of two properties owned by different individuals is a pre-requisite for this type.
- Ron has a property adjacent to that of Harry. Harry can have a direct and shorter access to the main road if he passes through Ron’s property.
- Harry comes up with an agreement with Ron to use his property to pass and have access to the main road, for a certain fee.
- In this case, there will be two ‘parcels’ of land, Ron has the ‘Servient Estate’, and Harry has the ‘Dominant Estate’―the estate which holds the right.
Negative and Affirmative Easement
This type gives a privilege to abstain a person from using his property in any manner, which the terms of agreement state. In simple words, it prevents someone from doing something with their property.
Mr. D might have a deal with Mr. A, in which, Mr. A agrees not to build any structure that might block the view from Mr. D’s window.
It allows any person to use the property for any particular purpose. The same example, mentioned above, of Cathy giving Stella privilege to use her well, is an affirmative easement.
Express and Implied Easement
It is ‘expressly’ stated or created in writing.
It is created by ‘implication’. No document or agreement is made in this case.
Easement by Prescription
An easement which has been granted by continual use. There is no express document stating the use, but it is by ‘prescription’.
- It is quite similar to adverse possession, which is a way to obtain land simply by using it instead of buying it. Most common example of this type is a walkway which has been in continually use for many years.
- Problem with this being its exact location is not clear sometimes.
Easement by Necessity
This is an easement created by necessity, implying that it is necessary to have it, to enjoy the property. Usually, a ‘landlocked’ property has easement by necessity, where you cannot have access to the road, without trespassing on someone else’s property. Such kind of property might be created mistakenly, or may result due to division of property.
Easements can be terminated, in the following ways:
- Expiration of tenure.
- Release of rights by the holder.
- Abandonment of rights by the holder, in such a way, that his actions clearly state that he does not intend to use the it.
- Merger―when holder of rights acquires the property burdened by right.
Easements can be subject of dispute, therefore, it is recommended that it is well documented. Other than that, it can be of great ‘ease’ and convenience for you and your neighborhood, either by giving a right or availing a right.