Categories of easements are pretty simple and often are part of the Real Estate License Exam. You’ll see information about gross and appurtenant easements, which involve the person who benefits from the easement.
An easement is the right of another person or entity to use someone else’s property for his or her benefit. The other person or entity can be an adjacent property owner or another party such as a utility company. The easement can include the right to use the space beneath the ground, on the ground, or up in the air above the property.
The person or property receiving the benefit is called the dominant tenement or dominant estate. The property on which the easement was granted is called the servient tenement or servient estate.
Appurtenant easements
Easements are defined by who benefits from them. An appurtenant easement benefits a neighboring property.
For example, your property can be landlocked, which means that it has no direct access to a public road. So to access your property from a public road, you must cross someone else’s property. If that other property owner gives you a permanent right to drive or walk across his property so that you have access to yours, he’s given you an easement appurtenant.
Although as the property owner, you negotiated the easement for your use and benefit, the easement will continue after you and your neighbor sell your properties to other owners. Under the statute of frauds law, which exists in some fashion in every state, easements must be in writing to be valid.
Because an easement appurtenant attaches itself to a piece of property, it’s said to run with the land, which means that whenever the property (dominant estate) that benefits from the easement is sold, the new owner has the same rights to use the easement that the old owner had.
Several appurtenant easements covered on the test include:
A surface easement such as to build a driveway to get from a public road to your house
An underground easement, for example to bring a water line from the city street main across your property to your neighbor
An overhead or aerial easement to run an electric line to your house by crossing your neighbor’s property
Easements in gross
Another type of easement is called an easement in gross. This type of easement benefits another person rather than a piece of property.
Typical easements in gross that you may see on the exam are utility easements. For example, the city wants to connect two sewer lines by crossing your property with an underground pipe or the electric company wants to connect a line between two poles.
Easements by necessity
A court order creates an easement by necessity to permit someone to gain access to a property. For example, say Property Owner A sells Buyer B a back portion of land but neglects to give Buyer B an easement for access. If A then refuses to give B the easement, B can go to court and get it by court order — an easement appurtenant.
Easements by prescription
An easement by prescription is an easement that is created by the actions of one person against the interests of another person.
An example may help explain this type of easement: Every night when your neighbor Joe comes home, he drives his car across a corner of your property. The reason doesn’t matter; he simply does it. You see him do it but never stop him, and he does it for a long time.
Eventually you get tired of him driving across your property and tell him to stop, but he says, “No way, I’ve got an easement by prescription.” Joe takes the matter to court, and the court agrees with him. Joe now has a permanent easement by prescription across your property. Easement by prescription requires a court order as a result of a lawsuit.
The fact that Joe’s actions had persisted for a long period of time came into play. That length of time varies according to which state you’re in.
You saw Joe cross your property. His use was open and what lawyers call notorious, meaning it wasn’t hidden. In a sense, by not telling Joe to stop sooner, you gave him silent permission to use your property.
Party walls
In areas of the country where houses or other buildings are built side by side with no space in between, the outside wall that’s shared by the two buildings is called a party wall. Each building owner owns half of the wall and has an easement for the other half. Fences on property lines and shared driveways work the same way.
Agreements that deal with maintenance issues usually are in place for shared items like these. These party-wall easements are created at the time the buildings are built and sold. They’re appurtenant easements because they benefit the adjacent property owner.
How to end easements
Easements can be terminated in several ways, including:
An agreement or release: The person who possesses the easement (dominant tenement) agrees to give it up or release the person across whose property the easement exists (servient tenement) from the obligation.
By merger: A has an easement to cross B’s property. B buys A’s property. The easement disappears.
By abandonment: Use it or lose it. Say you had a driveway easement to some country property that you visit regularly, and for one reason or another, you stop going to the property. Eventually the easement may be considered abandoned and you can lose it.
The need no longer exists: The need for the easement may no longer exist.
Usually some form of court action is needed to terminate an easement, unless the two parties agree, in which case some form of legal document agreeing to the termination of the easement needs to be executed and recorded.