Easements: How They’re Established, Extinguished And Much More

Easements are a long-recognized tool and staple of property transfer and ownership in the United States. They are a property right that can reflect an ownership interest in land to non-owners of the property which they encumber. The most basic definition of an easement is a right which runs with the land that allows a non-owner to utilize the land of another for a specific purpose which may not be severed absent several specific methods of extinguishment. This article takes you through the different forms of easement, an easement’s creation and scope, and the methods of extinguishment which can terminate an existing easement.

Easement Types

An easement is a non-possessory right to enter upon, cross over, or use land of another. There are two main categories of easement, those being 1) appurtenant easements (also known as rights of way); and 2) easements in gross (commonly known as utility easements). We go into detail on both below.

Appurtenant Easement: This is the most common form of easement seen in American property law. With an appurtenant easement, the benefit (the easement itself) is attached to a particular piece of land called the dominant estate, and “burdens” the servient estate. Stated plainly, an appurtenant easement is a right that is held with the owner of the neighboring piece of property which allows the neighboring land and landowner to enter the land of the owner of the servient estate. With appurtenant easements, the two entities involved are always the two parcels of land themselves, and not the individuals who own them (unless stated otherwise specifically in the easement).

Appurtenant easements come in many different forms, with the most common being 1) an express easement, or 2) a prescriptive easement, with the creation of both varying greatly. An express easement is the most straightforward easement that property purchasers and owners will encounter in their lifetimes, and it is created where the owners of two contiguous parcels of land enter into a written agreement whereby the owner of one parcel grants the owner of the second parcel a written right to do something on their land. The reason the term “something” is used is due to the fact that the scope of an easement can be anything, and usually ranges from the right to pass or repass over a specific portion of the property, to the right of the non-owner to access the owner’s land for whatever stated reason. The important consideration is that an easement’s “scope” be defined. Once an easement is executed, it is usually recorded in the land evidence records, and will “run with the land” in perpetuity, meaning that the easement will be valid even if either property is later sold to a third party.

Prescriptive Easements: These are different than express easements in that they can be established through the conduct of the party seeking to establish their easement rights across another’s land. Prescriptive easements are interesting in that they can either be appurtenant or in gross, meaning an easement by prescription can be established by an individual or multiple individuals through their individual use, or through use of a bordering or contiguous property. Prescriptive easements follow the same establishment process as adverse possession, meaning that a prescriptive easement is established where the claimant can show that they have utilized the area claimed open and notoriously in an adverse manner continuously for the statutory period required to establish the prescriptive easement in the jurisdiction of which the land sits. The statutory period for continuous use varies, with Rhode Island requiring a period of 10 years of continuous use, whereas Massachusetts requires 20 years of continuous use. Prescriptive easements differ from adverse possession in two ways, being that 1) to establish an easement by prescription, the claimant is not required to show they have used the area “exclusively”; and 2) prescriptive easements seek to establish the existence of a claimant easement rights, whereas adverse possession seeks to establish a claims ownership of the area in dispute. Prescriptive easements can occur in many instances in access points to shoreline, recreation spots, and other areas where the general public has utilized a piece of private property for many years without objection.

Easement In Gross: An easement in gross differs from an appurtenant easement because the benefit (the easement itself) is attached to an individual or entity, with the “burden” still running with the servient parcel of land.

Easements in gross are commonly referred to as “utility easements” as a reflection of their most common implementation, that being where an electric company, gas company, or other utility provider will hold an easement over a parcel of property to run powerlines, gas lines, etc. It is important to note that easements in gross allow the individual or entity benefiting from the easement to transfer those rights to another individual or entity, unlike an easement appurtenant which is attached to land itself.

Creation and Scope

The primary method for an easement’s creation is by express grant in either a deed, or a separate recorded easement agreement.

However, there are ways easements may be created absent an express written agreement or by prescription. For example, an easement may be created by “prior use” whereby one entity or individual once owned two continuous parcels of land, and that individual or entity sells one of the two parcels to someone else. There, if a claimant can show an existing, apparent, and continuous use of the servient parcel for the benefit of the sold parcel at the time of the sale of the sold parcel, there may exist reasonable necessity to continue the prior use of that easement at the time of sale. Other examples of easements which occur without a written agreement include easements by necessity, easements by implication, and other easements which tend to be somewhat rare.

Scope of Easements

Since easements are a non-possessory right as opposed to a total property ownership, the “scope” of an easement must be limited and defined as to what the holder is and is not entitled to do on the property. An express easement will usually have the easement’s scope defined in writing within the easement agreement itself. Other easements, such as a prescriptive easement, may not have a defined written scope, but will instead have a scope which is identified by the area of property which has been historically utilized as an easement.

Termination of Easements

As previously expressed, there is no default period for an easement unless stated otherwise within the easement agreement. As such, they “run with the land” in perpetuity, survive the transfer of property to other individuals and cannot be terminated without a well-recognized mode of termination.

The most straightforward method of termination is either by express agreement between property owners, or via the occurrence of an event stated in the easement agreement. Many easements may state that an easement holder retains those easement rights for only X amount of years and then automatically expires after that time.

Another termination method is called a merger, where the servient estate acquires the dominant estate, terminating the easement automatically. Termination can also be accomplished by several other methods, including abandonment, destruction or condemnation.

Conclusion

At DarrowEverett, we have drafted countless easement agreements, litigated easement disputes, and have been involved in all facets of easement issues spanning across the country. Experience in easements is essential to property acquisition, and property ownership. That is why it is important to always have competent legal counsel when dealing with easements at every step of the process, and we encourage anyone who may be encountering these issues to contact our offices to obtain a better understanding of their issues.

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