Giving Others the Right to Use Your Land: Easements

AuthorAlan R. Romero
ProfessionProfessor of law and Director of the Rural Law Center at the University of Wyoming College of Law
Pages79-102
Chapter 6
Giving Others the Right to Use
Your Land: Easements
In This Chapter
Understanding what an easement is
Discovering how to get an easement
Examining the rights and duties of the parties to an easement
Looking at how easements are transferred and ended
O
wning land means you have the right to exclude others. It also means
you have the right to transfer your rights to others. Not only can you
transfer your entire ownership of the land, but you can also transfer some of
your specific rights in the land while keeping other rights. For example, you
could agree to give up your right to exclude your neighbor from driving back
and forth over a driveway that passes over your land and onto his. The right
you would give your neighbor is called an easement.
This chapter tells you all about easements, from how they’re created,
transferred, divided, and terminated to the rules regulating the relationship
between the parties involved.
Grasping the Basics of Easements
An easement is a right a landowner intentionally or unintentionally gives to
another to use or to control the use of her land in some way, without
possessing it (which is why it’s often described as a nonpossessory interest
in land).
Easements, along with covenants (see Chapter 5), are known as servitudes. A
servitude is a general term for nonpossessory legal rights in another person’s
land. The land that is subject to an easement is called the servient tenement or
servient estate; the owner may be called the servient tenant. The owner of the
easement may be called the dominant tenant. If the easement serves other land
in some way, the benefited land is called the dominant tenement.
80 Part II: Understanding Real Property Rights
Easements always burden some land, so there’s always a servient tenement.
But easements might not benefit any dominant tenement; they may simply
benefit a person. Such an easement is called an easement in gross.
Check out the next sections, which explore the attributes of easements and
reveal how to differentiate easements from licenses and covenants.
Distinguishing affirmative
and negative easements
Most easements are affirmative easements, meaning they give a nonowner the
right to use the owner’s land in some way. Here are a few examples of
affirmative easements:
The right to cross the owner’s land to get to and from neighboring
property (often called a right-of-way)
The right to install and maintain power lines, water pipes, and sewage
systems on and under the owner’s land
The right to hunt, fish, or use recreational facilities on the owner’s land
Parties may also create negative easements, which give the easement holder
the right to restrain or control the use of the owner’s land in some way.
Traditionally, only the following types of negative easements were enforceable:
Preserving land: The conservation easement
A conservation easement is a negative
easement that limits use and development
of the servient land in order to preserve the
land’s natural character. A conservation
easement may protect and preserve wildlife
habitats, views and open space, recreational
uses, or even agricultural or historical values.
A conservation easement specifies the
aspects of the property to be preserved and
permits the servient owner to use the property
consistent with those conservation interests.
For example, a farm or ranch may be subject to
a conservation easement that allows continued
farming and ranching but doesn’t allow more
intensive uses and development.
Courts began recognizing and enforcing
conservation easements during the past
century or so. Because of some questions
about their enforceability and transferability,
many states have adopted statutes that
authorize conservation easements. Such
statutes generally authorize and apply only to
conservation easements held by governments
and private conservation organizations.
Furthermore, federal law encourages donation
of conservation easements to such holders
by allowing grantors to claim charitable
contribution deductions from federal estate and
income taxes.

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