Easements and the Creation of Rights to Another Person’s Property
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Easements and the Creation of Rights to Another Person’s Property

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When a person owns land, he or she may assume that he or she is the sole owner of all of the land and can restrict others' use of the land. However, through an easement, another person or entity may have the right to a limited use of the land.

Easement Basics

An easement is a nonpossessory interest in another’s land that allows the holder to use property that belongs to someone else. It is nonpossessory in nature because the holder is not the owner of the land and he or she does not have the right to exclude other people from the land unless they actually interfere with the holder’s use of the easement. 

Types of Easements

There are a variety of easement types. An affirmative easement is one in which an owner of land authorizes the use of his or her land to another. A negative easement is one in which a person’s rights to use land are restricted, such as by limiting a neighbor’s right to block light or a view.

Creation of an Easement

Most easements are created through conveyance in the form of deed or other recognized legal document, such as a contract or will. To create an easement, the same formalities that are required to transfer or make interests in land must be followed. These usually include the conveyance to be in writing, to be signed by the party to be charged and for the document to be delivered. However, in some circumstances, the court may create an easement by implication because of the circumstances, such as when the easement is made by necessity such as in cases involving land-locked property. Another time when easements may be made by implication is when there is a quasi-easement that is based on the property owner’s prior use of property for another benefit of the land. A prescriptive use easement may apply when property is used by routine and adverse use of the property for a certain amount of time. Estoppel can also cause an easement when someone has relied on the words or actions of another individual to their detriment. 

Scope of Easement

Easements may provide different stipulations regarding the location, dimensions and scope of the holder’s interest. If the easement was conveyed by written document, the terms in the document should specify the scope of the easement. The same may be possible for easements created by prior use or necessity. A party who wants to clarify their rights may petition the court for a legal interpretation. 

Holder’s Rights

Generally, the holder of the easement has the right to do such activities that is convenient or necessary in order to make full use of the purpose of the easement, as evaluated on a reasonable basis. However, the holder of the easement should not place an unreasonable burden on the property. The reasonable use of the easement may change with time based on changes in the area and technological advancements. Some courts have allowed easement holders to cut trees to access an easement, replace equipment on the easement with updated equipment and convert a railroad easement into a recreational trail. If a court finds that the owner of the land has unduly interfered with the easement, it can order the property owner to pay monetary damages to the holder of the easement or may order the property owner to remove the obstruction that is causing the interference at his or her own expense. 

Property Owner’s Rights

The property owner has the right to make any use of the same land that does not unduly interfere with the holder’s use of the easement. Questions regarding an undue burden usually depend on the specific facts of each case. If a court holds that the land is unduly burdened, the property owner may have a number of remedies available. Upon the property owner’s petition, the court may order the use of the holder of the easement to be restricted to a certain extent, the easement holder may be required to pay for monetary damages or the court may terminate the easement altogether. 

Legal Assistance

Some property owners may not discover that their land is affected by an easement until after they have purchased the property. If two parties are considering making an easement, their expectations should be clearly listed in writing to avoid any future problems. Individuals who are affected by an existing easement or who wish to create an easement may wish to talk to a real estate attorney. He or she can explain the individual’s rights and options.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.


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