Easements: Changing the Type or Purpose of Use - dummies

Easements: Changing the Type or Purpose of Use

By Alan R. Romero

An easement agreement may specify that the easement may be used for certain purposes and in certain ways. For example, an easement agreement might grant only the right to ride across the land on a unicycle to go to costume parties. In fact, real property lawyers who draft easement agreements ought to be as precise as possible to avoid uncertainty and disputes.

If the easement agreement does limit the purposes for which the easement may be used, or the ways in which it may be used, then any use beyond those limitations is a trespass.

But when the easement agreement doesn’t specify permitted purposes or types of use, or when the easement is implied or prescriptive, the court must decide whether new uses of the easement are within the scope of the easement or whether they’re trespasses.

A change in the purpose or type of use is generally within the scope of the easement if the new use is a normal and reasonable evolution and it was reasonably foreseeable. For example, over time, the dominant estate may change from agricultural to residential uses, so cars rather than farm vehicles may travel the right-of-way.

Most courts would agree that such a change is a normal, foreseeable evolution in the use of the land and that when the parties created a general right-of-way, whether it was express or implied, they would’ve intended for the dominant tenant to have the right to use the easement in normal ways over time.

Therefore, such a change in the use of the easement is not a trespass on the servient land.

If the easement is prescriptive, a court may ask whether the servient owner would’ve objected to the new use if it had occurred before the prescriptive period had run. If the servient owner would’ve objected, then the new use is beyond the scope of the prescriptive easement.