Have you ever looked at a property that has a walking trail on the side or maybe a shared driveway? These are forms of easements, so lets talk about what they are and the different kinds that exist. There are 2 parties involved in easements: the servient tenement or estate, which is the lot burdened by the easement, and the dominant tenement or estate which is the lot benefited by the easement.
So what is an easement?
An easement is a nonpossessory right to use the land owned by another. Meaning someone who does not possess the land has the right to use the land for a specific purpose according to the owner of the land.
There are 2 kinds of easements
1. An easement appurtenant is an easement that runs with the land and involves 2 separately deeded lots which are next to each other. Appurtenance itself is a right or improvement that belongs to the land. The saying "runs with the land" means that this easement will continue to exist no matter who owns the land. It is part of the property and is outlined when the property is sold/bought. In this type of easement there are two parties.
2. An easement in gross is an easement involving only one lot. In these cases there is only the servient tenement or estate since there is only one lot, and no dominant tenement. These are often seen in utility easements which gives your utility company the right to come onto your property to inspect and maintain your utilities.
Easements can be created to give the right to do something an affirmative easement or to prevent the holder from doing something a negative easement. There are 6 ways of creating an easement each with its own purpose.
1. Express agreement where the parties write up a contract.
2. Reservation in a deed when a seller sells a property, but reserves an easement in the deed.
3. Necessity granted by law because it is necessary for the fill enjoyment of a property.
4. Prescription when using another's land for a statutory time period can lead to the courts awarding an "easement by prescription". The use of the land most be open, continuous, notorious and hostile.
5. Condemnation which is an exercise of the governments right of eminent
domain.
6. Implication where the party's actions of the specific situation implies that the parties intend to create an easement.
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