Easements
| Author | Jeffrey Wilson |
| Pages | 1171-1175 |
Page 1171
An easement is a property interest, which entitles the owner of the easement to the privilege of a specific and limited use of the land of another. A right of way is a form of an easement granted by the property owner that gives another the right to travel over and use the owner's land as long as it is not inconsistent with the owner's use and enjoyment of the land. These principles had their origins in traditional common law which governed matters such as the free flow of water and which allowed neighboring landowners to traverse, often by horseback or on foot, an informal "road system." Early courts reasoned that while absolute ownership rights of property can be lessened by an easement, society as a whole benefits from the resulting freedom of movement.
An affirmative easement is a requirement to do something, such as allowing another access to or across a certain piece of property. Most easements fall into this category.
A negative easement is a promise not to do something with a certain piece of property, such as not building a structure more than one story high or not blocking a mountain view by constructing a fence. There are not many negative residential easements in existence today as such architectural specifications are typically covered by rules and regulations promulgated by homeowners' associations. These documents are usually entitled Codes, Covenants, and Restrictions, often referred to as CC&Rs. A negative easement is sometimes referred to as an easement of light and air and in most states cannot be created by implication.
There are five ways to create an easement: by an express grant, by implication, by strict necessity, by permission, and by prescription.
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An express easement is created by a deed or by a will. Thus, it must be in writing. An express easement can also be created when the owner of a certain piece of property conveys the land to another but saves or reserves an easement in it. This arrangement is known as an easement by reservation.
To create an easement by implication, three requirements must be met:
The easement must be at least reasonably necessary to the enjoyment of the original piece of property.
The land must be divided (or "severed"), so that the owner of a parcel is either selling part and retaining part, or subdividing the property and selling pieces to different new owners.
The use for which the implied easement is claimed must have existed prior to the severance or sale.
The courts will find an "easement by necessity" if two parcels are so situated that an easement over one is strictly necessary to the enjoyment of the other. The creation of this sort of easement requires that at one time, both parcels of land were either joined as one or were owned by the same owner. Prior use of the easement, however, is not required. The most common example of an easement by necessity is landlocked property, so that access to a public road can only be gained by having a right of way over an adjoining parcel of land. The legal theory is the landlocked parcel was accidentally created, and the owner forgot to include an easement appurtenant to reach the road.
A permissive easement is simply an allowance to use the land of another. It is essentially a license, which is fully revocable at any time by the property owner. In order to be completely certain that a permissive easement will not morph into a prescriptive easement, some landowners erect signs stating the grant of the permissive easement or license. Such signs, often found on private roadways, typically state: "This is a private roadway. Use of this road is permissive and may be revoked at any time by the owner."
Most litigated easements are those created without permission. An easement by prescription is one that is gained under...
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