An easement is a right to use another’s property for a particular purpose.  Below are general concepts regarding easements; if you have a problem or question about your easement, then consult Nye & Associates, PLLC.

Definitions. The person’s property benefiting  from the easement is the “dominant estate.”  The person’s property whose land is subject to the easement is the “servient estate.”

Writing.  An easement normally must be in writing either in a deed expressly granting the easement or reserving the easement. They can also be in plats.

Implied or Necessity.  Sometimes easements can be implied without a writing or arise by necessity; the rules  are complicated and confusing, but for example, if one seller splits a property and sells 2 parcels and does not provide an easement in the deed, and the back parcel is landlocked, then an easement may be implied even though the seller forgot to put it in the deed.

Easement by Prescription.  An easement can be obtained by adverse possession  or “squatter’s rights.”   If there is no easement, but someone uses a portion of land as an easement for 15 years, then it may automatically become an easement

Run with the land. Once an easement is properly created, then it runs forever with the land, unless the current owner of the property that is benefiting from the easement deeds back the easement.

Use of Easement or “Burden.”  The easement can only be used for the purpose for which it was created.  For example, many easements say “for ingress and egress.”  If that easement is for a residential home, then likely the only residential use allowed is for the residents to get to and from the house; if the owner of that house opens a tanning salon in the garage, then the easement probably does not allow the customers to access the house because that is for a commercial purpose — not a residential purpose.

Who owns the land?  The land under the easement is still owned by the underlying owner of the land; the person with the easement does not  own the land under the easement — that person only has a right to use his neighbor’s land for the purpose allowed by the easement.

Interference with Easement. An interference with another’s right to use an easement is a trespass.

Taxes.  The servient estate must pay the property taxes of the land under the easement because he or she actually owns the land; the dominant estate has no duty to pay the property taxes although it is benefiting  from use of the land.

Maintenance.  The duty to maintain the easement is upon the dominant estate (easement user.)  The servient estate owner has no duty to maintain the easement.

License versus Easement. If someone gives a neighbor verbal permission to use his or her land for an easement, then that is a “license” and not an easement and may be terminated by simply withdrawing the permission.

 

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