Easements are often known as a right-of-way. Easements are the right to use part of another person’s land for a specific purpose. A simple example is the right to travel on a private road to gain access to otherwise inaccessible land. The easement holder does not have a right to possess the land – it is only a right to access the servient property for a specific purpose. The easement holder is also prohibited from using their access in a way that would unreasonably disrupt the landowner’s enjoyment of the property.
Easements are usually created by a contractual agreement or negotiated through a deed transfer as part of a property sale. But easement rights can also arise without a written agreement such as a right of way for a land-locked property (“implied easements”), or when a landowner fails to stop continued trespass for 21 years (“easement by prescription”).
Some easements are specific to a particular person who holds the easement (“easements in gross”). For these personal easements, the holder does not have to be the adjoining land owner so it does not matter who owns the adjoining land. For example, a landowner might negotiate an easement for the right to cross through a property to gain access to a lakefront for fishing purposes. Other easements are created for the benefit of the adjoining land itself, as opposed to a specific person (“easements appurtenant”). An example is a landowner who subdivides a property and includes an easement as part of the transfer of a parcel.
Easements are a frequent source of disputes due to the fact that one person or business has access to another’s property. Examples of common disputes are whether an easement actually existed, the location of an easement, what the holder is permitted to do with it, whether it should terminate, whether the easement is being abused or used unreasonably, and whether it can transfer to another person.
Recent purchasers of a property are often inclined to take action if they discover an unrecorded easement or are unhappy with how an easement is used. The recent buyer may realize that the easement is interfering with their enjoyment of the property or creating a potential safety issue.
Property owners who are frustrated by an easement can resolve the problem several ways:
- Enter into an agreement with the easement holder to terminate the easement
- Buy the adjoining property
- Explore legal remedies to limit or terminate the easement
- Sue for money damages for improper use of the easement that damages the servient property
The circumstances surrounding how the easement was created affects how the dispute can be resolved. As a real estate attorney to property owners, I help resolve legal disputes and avoid costly mistakes. If you know a property owner involved in an easement dispute, please give them our contact information.
Phone (484) 690-4613
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