The Difference between Easements and Licenses
By definition, an easement is an interest in land that lasts either indefinitely or for some specified period of time. A license, on the other hand, is permission to use land that can be revoked at any time.
Because both easements and licenses involve the use of another person’s land, they can look similar. If the parties’ agreement doesn’t clearly specify whether the landowner can revoke permission or whether the grant is durable, a court has to figure out whether they intended to create an easement or a license, which determines whether the landowner can revoke permission.
Courts typically consider the following kinds of evidence to decide whether an agreement allowing one party to use another’s land is a durable easement or a revocable license:
Indications that the grant was to last permanently or for a specific time: If the parties intended the grant to be permanent or for a specific time, the grant is an easement by definition.
Designations of the area that the grantee can use: Because a license is revocable at will, the licensor may not be specific about the area subject to the license. In contrast, because an easement is an interest in land, the statute of frauds may require some specification of the land subject to the easement.
Even if it doesn’t, the grantor of an easement is more likely to be specific about the grantee’s rights, because the grantor can’t just change her mind if she’s unhappy with what the grantee does.
The right to make improvements: If the grantee has the right to improve the land somehow, the parties probably intended to create an easement. A license is more temporary and less substantial, so the licensee is unlikely to make investments in the licensor’s land, knowing that the licensor can revoke permission to use her land anytime.
Payment of consideration: When the grantee pays consideration for the grant, it’s more likely an easement. A grantee is less likely to pay for a license that can be revoked at any time than to pay for an easement that’s durable and can’t be taken away at will.