NOTE: This summary is very simplified, and is provided for informational purposes. If you have questions on this topic in relation to a dispute with a local government or condemning entity, or questions on accessing a landlocked parcel, please contact The Office of the Property Rights Ombudsman. If you need legal advice in a private civil matter, you are encouraged to seek out a licensed attorney who can advise you of your legal options or represent you in a civil action.
An easement is an interest in land belonging to another person, so that the easement owner has a limited right to use or enjoy the other person’s property. Common easements include rights of way for access, or the right to cross property (including easements for utility service or water conveyance).
An easement is a property interest, and is subject to the same general laws as ownership of real property. The property served by an easement is sometimes referred to as the “dominant estate,” and the property subject to the easement is the “servient estate.”
An “Appurtenant Easement” belongs to and benefits a particular parcel of land. Such easements are part of the property rights of the dominant estate, and are transferred along with the property. A roadway for access to a parcel is an example of an appurtenant estate.
An “Easement in Gross” is a personal right to use land, but is not attached to any particular parcel. In general, an easement in gross is not transferrable. Hunting rights on private property is an example of an easement in gross. The right may be exercised even if the easement owner does not own land.
An easement may be created by a deed or other conveyance, which shows an intent to create an easement, and which states the location and purpose of the easement with reasonable clarity.
While it is preferable for easements to be created by written documents showing an agreement between the easement owner and the other property owner, easement rights may also be established by implication, necessity, or prescription. The elements necessary to establish such easement rights are discussed below.
If a property owner believes that the elements to establish an easement have been met, the owner may have a claim to an easement right. Simply claiming an easement right by implication, necessity, or prescription is not sufficient, no matter how strong the evidence that the right should be recognized. In order to formally establish the easement as a property right, the owner would need to either enter an agreement with the owner of the property being used for the easement, or file an action in court to prove that the easement right has been established.
An easement may be “implied” if it can be shown that the easement use existed before a parcel was divided from a larger property. To establish an easement by implication, these four elements must be shown:
(1) Unity of Title, which means that the servient estate (the land subject to the easement) and the dominant estate (the parcel served by the easement) were once owned by one person, but the parcels were divided.
(2) Before the parcels were divided, the easement use was apparent, obvious, and visible.
(3) The easement is reasonably necessary for enjoyment of the dominant estate.
(4) The easement has been used continuously rather than sporadically.
An example of an implied easement would be an irrigation ditch that conveyed water to part of a parcel, which was later divided. After the property division, the ditch was still used regularly. Since the ditch is reasonably necessary for the enjoyment of the new parcel, it would be an implied easement.
A prescriptive easement is created when a person uses another person’s property (even though the use was not expressly agreed to) for a prolonged period. Prescriptive easements recognize long-standing usage, especially if the use was relied upon for the enjoyment of property. To establish a prescriptive easement, the use must be:
(1) Open, or used in such a way that the property owner would be aware that the property is being used.
(2) Notorious, or used in such a way that the general public would be aware that the property is being used.
(3) Adverse to the owner’s interest, or without permission or approval from the property owner.
(4) Continuously used for at least 20 years.
Although judicial cases on prescriptive easements list them separately, “open” and “notorious” are similar concepts. The requirements reflect a policy that a property owner should be aware that the prescriptive easement is being used, and have an opportunity to stop the use. If the proposed easement is used secretly or surreptitiously, the servient estate owner would not be aware of the use, and thus would not have the opportunity to stop it.
“Notorious” does not mean a criminal act or some wrongdoing, but only that the use of the easement was carried out openly (that is, with notoriety) so that any person familiar with the property would be aware that the easement is being used.
“Adverse to the Owner’s Interest” usually means that the easement use was without permission or approval from the property owner. If the owner gives permission to enter or cross the property, then the easement could not be established by prescription, and the owner could prohibit the use. However, if it can be shown that a use that was permitted has become “adverse,” then a prescriptive easement could possibly be established. “Adverse to the Owner’s Interest” also implies that the easement limits the owner’s use of the property that is being used for the easement.
If the proposed easement is used by both property owners (of the dominant and servient estates), the use still may be adverse if it is carried out without the property owner’s permission, and even though the property owner benefits from the same use as the proposed easement. For example, a roadway that is used by both property owners might still qualify as a prescriptive easement, even though it benefits the owner of the property as well as the owner claiming the easement.
An “easement by necessity” arises when a larger parcel is divided, and an easement is reasonably necessary to use and enjoy one of the parcels. To establish an easement by necessity, the following must be shown:
(1) Unity of title, meaning that the affected parcels were once owned by the same person or entity and then divided.
(2) At the time the original property was divided, at least one of the new parcels had no reasonable access, and access across one or more of the other parcels is reasonably necessary.
If a parcel has reasonable access, then a new easement would not be necessary, even if the new easement would be more convenient for the parcel owner.
The “scope” of an easement refers to the extent and limits of an easement’s allowable use. The scope includes the size of an easement, allowable uses, and the level and frequency of use. The scope may change over time, due to new needs or even new technology. The owners of the dominant and servient estates may also agree to alter an easement’s scope.
An easement’s scope is usually determined at the time it is created. A deeded easement should include a description of the easement’s scope. For implied, prescriptive, or necessity easements, the scope is usually based on the historic use that established the easement.
The scope of an implied, prescriptive, or necessary easement may diminish, if the use changes over a prolonged period.
In contrast, if a deeded easement is not fully used, the owner still retains ownership of the easement described in the deed. For example, if a deed grants an easement that is 25 feet wide, the owner retains the full 25 foot width, even if only half of the area is actually used.
An easement may be used for the purpose for which it was established. An access easement, for example, may be used for access by crossing property belonging to another person. Depending upon the specific circumstances, an easement right may include similar uses not anticipated when the easement was originally established. An easement for an irrigation ditch, for example, may also be used for a pipeline to convey water, if the pipeline does not unreasonably enlarge the easement.
An easement’s use may not unreasonably interfere with the property rights of the servient estate. As a corollary, the use of the servient estate may not unreasonably interfere with the rights of the easement owner. What constitutes an “unreasonable interference” depends upon the circumstances. For example, it may be reasonable to ask that the easement owner close or lock gates on the servient property, and it may be reasonable that the easement owner be allowed to grade or maintain an access roadway.
An easement also may not be expanded beyond what is expressly stated in the documents creating the easement, or beyond the use that established the easement. It would not be permissible to expand a narrow access driveway into a four-lane road, if that was not anticipated when the easement was created.
An easement may be terminated by agreement between the property owners. If the easement is created by deed, a quit-claim deed terminating the easement should be recorded.
If the dominant and servient estates are owned by the same person, there is no longer a need for an easement, and so it would terminate. If the owner sells either parcel, the easement could be recreated. In some cases, if a land purchaser is not aware of an easement, it may terminate, even if the easement is needed by the dominant estate.
An easement may possibly be terminated through abandonment, if it is not used for a prolonged period of time and the easement holder says or does things showing intent never to use it again. In addition, if the underlying property owner uses the land in a manner inconsistent with the rights of an easement holder for a period of 20 years, the easement may terminate. If the easement was created by a deed, however, it is a property right belonging to the owner, and so abandonment may be difficult to prove.