easement - Classification of easements, Dominant tenement versus servient tenement, Trespass upon easement, Restrictive easement, England and Wales

In English law, a right of use over the land of another. The easement must normally benefit the adjoining land, no matter who is the owner; and will be extinguished if both properties (the dominant and servient tenements) are subsequently owned and occupied by one person. A private right of way may exist as an easement, though a person may instead have permission to cross land by virtue of a licence. Easements may be expressly or impliedly granted. They may also be acquired through long use (prescription). Further examples include easement of light, the support of buildings, and the taking of water. An easement of necessity is implied when access to land acquired by someone is impossible without a right of way over adjoining land retained by a vendor or lessor. Certain matters may not be the subject of an easement, such as an unspoilt view, though in this particular case a restrictive covenant against building may achieve the desired effect.

Property law
Part of the common law series
Acquisition of property
Gift  · Adverse possession  · Deed
Lost, mislaid, and abandoned property
Bailment  · Licence
Estates in land
Allodial title  · Fee simple
Life estate  · Fee tail  · Future interest
Concurrent estate  · Leasehold estate
Condominiums
Conveyancing of interests in land
Bona fide purchaser  · Torrens title
Estoppel by deed  · Quitclaim deed
Mortgage  · Equitable conversion
Action to quiet title
Limiting control over future use
Restraint on alienation
Rule against perpetuities
Rule in Shelley's Case
Doctrine of worthier title
Nonpossessory interest in land
Easement  · Profit
Covenant running with the land
Equitable servitude
Related topics
Fixtures  · Waste  · Partition
Riparian water rights
Lateral and subjacent support
Assignment  · Nemo dat
Other areas of the common law
Contract law  · Tort law
Wills and trusts
Criminal Law  · Evidence

An easement is the right to do something or the right to prevent something over the real property of another. At common law, an easement came to be treated as a property right in itself and is still treated as a kind of property by most jurisdictions. Unlike a lease, an easement does not give the holder a right of "possession" of the property, only a right of use.

Easement concepts differ substantially from country to country, and in the U.S. from state to state.

Classification of easements

Public easements versus private easements

Easements may be considered public or private. A public easement is one that grants the right to a large group of individuals or to the public in general, such as the easement on public streets and highways or of the right to navigate a river.

Appurtenant easements compared to easements in gross

In the U.S., an appurtenant easement is one that belongs to the owner of the land that benefits from the easement, as compared to an easement in gross that is personal to holder of the easement and does not pass automatically to another person when the easement holder's property is sold and bought.

An easement in gross is one that is attached to an individual person or legal entity rather than a parcel of real estate served by the easement. This easement can be personal (like an easement to use one's boat ramp) or commercial (like an easement given to a railway company to build and maintain a rail line across one's property) in nature.

Dominant tenement versus servient tenement

Where an easement is appurtenant, it will typically require the existence of two parcels of land, known as tenements.

For example, where a driveway is owned by house A, but the owners of house B are permitted to drive over it to gain access to their house, there is an easement of way, with house B the dominant tenement and house A the servient tenement. In most of the United States, using someone else's property, for example, for ingress and egress over a certain number of years, regularly and without the consent of the property owner, can give the user the right to continue using the property for the same purpose for as long as the user wishes. This method of acquiring an easement is called a "prescriptive easement" or "easement by prescription."

In the United States, "prescriptive easement" cannot be used to acquire the right to protect a view over a neighboring property no matter how long a property owner has had a view over the neighbor's property.

Prescriptive easements can be contrasted with adverse possession, which involves the taking of complete title to land rather than just taking the right to use the property.

Implied easements versus express easements

An easement may be implied or express.

Easement by necessity

Similarly, parcels without access to a public way may have an easement of access over adjacent land, if crossing that land is absolutely necessary to reach the landlocked parcel. An easement by necessity is distinguished from an easement by implication in that the former easement arises only when "strictly necessary," whereas the latter can arise when "reasonably necessary."

Some U.S. state statutes grant a permanent easement of access to any descendant of a person buried in a cemetery on private property.

Easement by prescription

Easements by prescription, also called prescriptive easements, are implied easements that give the easement holder a right to use another person's property for the purpose the easement holder has used the property for a certain number of years, which varies from state to state. Prescriptive easement doctrine is not the same as adverse possession doctrine, which allows someone to acquire ownership of the title to a property by asserting possession of the property for the legally required period; Easement by prescription is typically found in legal systems based on common law, although other legal systems may also allow easement by prescription.

The period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws (usually based on the statute of limitations on trespass). Generally, if the true property owner acts to defend his property rights at any time during the required time period the hostile use will end, claims on adverse possession rights are voided, and the continuous use time period resets to zero.

In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal property owner, the prescriptive easement may become a regular or implied easement rather than a prescriptive easement and immediately becomes binding. In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement.

Government owned property held for common use is generally immune from prescriptive easement in most cases, but some other types of government owned property may be subject to prescription in certain instances.

Prescription may also be used to end an existing legal easement. For example, if a servient tenement holder were to erect a fence blocking a legally deeded right-of-way easement, the dominant tenement holder would have to act to defend his easement rights during the statutory period or the easement might cease to have legal force, even though it would remain a deeded document.

Right-of-way for access is among most common easement by prescription. This is true whether the government acquires full ownership of the property ("fee title") or a lesser property interest, such as an easement. Similarly, there may be a private easement to cross a private lake to reach a remote private property, or an easement to cross private property during high tide to reach remote beach property on foot.

Trespass upon easement

Blocking access to someone who has an easement is a trespass upon the right of easement and creates a cause of action for civil suit.

Open and continuous trespassing upon an easement can lead to the extinguishment of an easement by prescription (see below), if no action is taken to cure the limitation over an extended period.

Restrictive easement

Restrictive easements are also called "negative easements," as their "use" is normally prohibitive, such as a common "non-vehicular access" easement as shown along a main thoroughfare where the governmental entity needs to restrict access. For instance, if a leased piece of land is not precluded by zoning laws (probably because it is not in a township) from having people inhabit it, and the government feels that for some reason living there would be especially unsafe, it may place a restrictive easement on the property stating that no one may live there.

Another type of restrictive easement is an historic preservation easement in which the owner of a historic structure agrees not to change specified historic elements of the facade.

The primary difference between location preservation ordinances and historic preservation easements is that local ordinances are discretionary and can be removed and a historic preservation easement runs with the property forever.

The value of easements imposed on historic properties already protected by local ordinances has recently been the subject of discussion by some people who have claimed that “where the subject property is located in a local historic district in which there are existing restrictions, regulations and controls, the terms of the easement are substantially redundant.”

Easement-encumbered properties within local historic districts should sell at a penalty relative to unencumbered properties in such districts because the easement typically imposes stricter controls than those contained in the usual preservation ordinance.

Easements often prohibit changes in property use or changes to significant architectural features while ordinances may permit such changes, subject to review and approval by a board of architectural review.

Further, unlike preservation ordinances, the easement typically contains no relief for "economic hardship" commonly found in governmental regulation of land use. An easement on a historic urban property is generally intended to preserve and conserve the historic, architectural, scenic and cultural values of a certified historic structure.

An easement donation reduces the basis in subsequent years by a fraction equal to the ratio of the value of the easement donation divided by the value of the property just before the easement donation takes place. The proceeds from the extinguishment are prorated at a fraction equal to the ratio of the value of the easement donation divided by the value of the property just before the easement donation takes place, and paid to the easement holding organization (not the landlord).

In the case of properties located in registered historic districts, the easement will also protect the historic district through limitations on uses that might jeopardize the architectural scale, style and sense of cultural identity of the district. The easement does this by restricting alteration and modification of the property in ways that would change its historic appearance or remove or replace historic building fabric. Such an easement typically contains provisions:

1) Prohibiting demolition. Depending upon the property, the easement may also prohibit or limit use changes.

12) On structures within historic districts provide that any replacement structure must be constructed according to design plans approved by the easement holder. Any unrecorded easement is extinguished and no easement by prescription or implication may be claimed.

England and Wales

In England and Wales there are four requirements for an easement:

there must be a dominant and servient tenement the easement must confer a benefit (or "accommodate") the dominant tenenement the dominant and servient tenements must not be owned and occupied by the same person the easement must be capable of forming the subject matter of a grant

Thus an easement is always linked to a specific property and can never be in gross, nor can an easement be for the benefit of the general public.

Prescription

An easement may be prescribed where the easement has been used as if the owner of the dominant tenement were entitled to it (known technically as "user as of right"). There are now four ways that an easement may be prescribed:

immemorial user long user lost modern grant under the Prescription Act

There are three conditions for a user as of right to exist, which follows the Roman Law doctrine of nec vi, nec clam, nec precario (without force, without secrecy, without permission).

The question of how far the owner of the servient tenement may prevent prescription by giving a blanket permission to use the easement is uncertain. 356, that the owners of an easement of way could prevent the possibility of the acquisition of prescriptive rights by displaying a notice on the road in question stating that anybody using the road did so "only be permission of the Trustees and that that permission might be withdrawn at any time."