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Friday, November 16, 2018

Understanding the Different Types of Real Property Easement

by Stuartclocks (writer), , June 21, 2018

There are numerous ways in which an easement may arise, and all property owners should be aware of them all in order to understand whether they have an easement in someone else’s property

In general, an easement is a right to use another person’s land for some limited purpose. For example, although you don’t own their property, you may have unlimited access to a portion of it for the purpose over crossing over it to reach a public road. There are numerous ways in which an easement may arise, and all property owners should be aware of them all in order to understand whether they have an easement in someone else’s property – or if someone has an easement in theirs. If you are concerned about easements, you should hire a law firm, like Adam Leitman Bailey, P.C., to look into this nuanced issue for you. For now, let’s explore the different types of easements.

Express Easements

This type of easement is the most obvious and easy to understand. An express easement exists when the owner of the property burdened by the easement and the owner of the property benefitted by it agree in writing to create it. This written easement should be recorded with the county recorder’s office in order to make sure all subsequent buyers and sellers of the property have notice of it.

Prescriptive Easements

If you are familiar with the doctrine of adverse possession, then the concept of a prescriptive easement should be fairly intuitive to you. Essentially, a prescriptive easement is gained by exercising it without the property owner’s permission for a statutorily-defined amount of time. Specifically, the person claiming the easement must show that it was exercised without consent openly, notoriously, and continuously for a period of years that varies among different jurisdictions. A major difference between gaining a prescriptive easement and acquiring title to the entire property by adverse possession is that the latter requires exclusive use by the adverse possessor, while the former does not.

Implied Easements

Implied easements exist when the law infers that the parties intended to create an easement, even if there is no extant writing embodying this intent. There are three conditions that must be satisfied in order for an implied easement to exist. First, the owner of the property burdened by the easement must convey a portion of their property to the owner of the benefitted property. Next, the owner of the burdened property must continue to use the property in a way that both parties believed or intended them to use it after that portion of the property was transferred. Finally, the implied easement must be necessary for the owner of the property benefitted by it to enjoy his land.

Easements by Necessity

This type of easement is similar to an implied easement, but with some important differences. An easement by necessity is created when a single piece of land is divided by its owner, and one portion of it is then held by one owner, and the other portion is held by another. The easement by necessity is then created if it is truly necessary for the owner of one of the portions to use their land. For example, assume that Farmer Smith owns property called Greenacre. Farmer Smith divides Greenacre into Blueacre and Yellowacre. Farmer Smith transfers Blueacre, which can only access the public road by crossing Yellowacre, to John. John would have an easement by necessity to cross Yellowacre, since his property is landlocked and would be without valuable use absent the easement.

Conclusion

As you can see, there are numerous ways in which an easement can be created, some of which can occur automatically without one (or either) party’s intent. Therefore, you would do well to speak with a lawyer to figure out whether your property is burdened or benefitted by an easement.



About the Writer

Stuartclocks is a writer for BrooWaha. For more information, visit the writer's website.
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