Easements: Using Land You Do Not Own
An easement is a right to make some defined use of another party's land. The holder gets the use and nothing more; the owner keeps the parcel, keeps possession of it, and keeps every right the easement did not take.
The whole subject turns on two questions. What exactly may the holder do, and does that right travel with the land when either parcel is sold?
Two Parcels or One: Appurtenant and In Gross
An appurtenant easement involves two parcels standing in a fixed relationship. The parcel that enjoys the benefit is the dominant tenement. The parcel that carries the burden is the servient tenement. A driveway crossing one lot so the lot behind it can reach the road is the standard illustration.
The benefit belongs to the land, not to the person who happens to own it. Sell the dominant parcel and the buyer takes the right along with it; sell the burdened parcel and the buyer takes it subject to the same obligation. Candidates remember this as the right running with the land.
An easement in gross has a beneficiary but no dominant parcel. A utility running lines across a property holds a right personal to that entity, with no second tract benefiting. Commercial rights of this kind are ordinarily transferable; purely personal ones are usually not.
First question on any easement item, then: is there a second parcel on the benefited side? Two parcels means appurtenant and means the right survives a sale. One parcel plus a holder means in gross, and whether it transfers depends on its character.
How Easements Come Into Existence
Most arise by written agreement. An express grant is the owner of the burdened land conveying the right to someone else. An express reservation is a seller carving out a right and keeping it while conveying the rest of the parcel. Both ordinarily belong in a recorded instrument.
An easement by necessity arises when a parcel is landlocked as the result of a division of a single larger tract. The law supplies access because the parcel would otherwise be unusable, and courts treat the right as having been implied in the conveyance that created the problem.
An easement by implication arises from how the property was used before it was split. Where a prior use was apparent, continuous and reasonably necessary to the part conveyed, the right may be found even though no one wrote it down.
Prescription is the adverse route. Use that is open, continuous and without the owner's permission may ripen into a right after a statutory period. The length of that period and the exact elements are set by each state's statutes and case law, so confirm them for your jurisdiction rather than carrying a number from another state's course material.
How an Easement Ends
Merger is the cleanest termination. When one party comes to own both the dominant and the servient parcel, the right dissolves, because nobody holds an easement over their own land. Splitting the parcels later does not bring it back automatically.
A release is the holder giving the right up, typically by a recorded instrument running to the owner of the burdened parcel. Abandonment requires more than simply not using the right: there must be conduct showing an intent to give it up permanently.
Some rights end on their own terms. An easement written for a stated period expires when the period runs. An easement by necessity ends when the necessity does, as when the once-landlocked parcel gains its own frontage on a public road.
Destruction of the structure the right depended on, a taking through eminent domain, or a prescriptive use by the servient owner that blocks the right for the statutory period can also terminate it. The available grounds and their requirements are matters of state law.
Lines Candidates Cross by Accident
Each pair below appears in exam stems built to look alike.
Easement versus license. A license is revocable permission, personal to the holder, and it does not run with the land. An easement is an interest in land and is far harder to revoke.
Easement versus encroachment. An encroachment is an unauthorized intrusion, such as a fence or eave over the boundary. It is a trespass problem, not a granted right, though long-standing encroachment can raise prescription issues.
Easement versus profit. A profit adds the right to remove something of value from the land, such as timber, gravel or minerals. Plain use rights do not include taking materials away.
Easement versus restrictive covenant. A covenant limits what the owner may do on the owner's own parcel. An easement authorizes someone else to do something on it.
Dominant versus servient. The dominant parcel receives the benefit; the servient parcel bears the burden. Reversing the two is a common careless error.
Appurtenant versus in gross. Two parcels, or one parcel plus a holder. The answer determines whether the right passes to a purchaser.
Use versus possession. The holder may use the strip described. The owner still possesses it and may use it in any way that does not interfere.
Easement Questions That Come Up Often
Does the burdened owner lose the strip of land?
No. Ownership and possession stay with that owner, who may continue using the area in any manner that does not unreasonably interfere with the right granted.
Does an easement survive the sale of the property?
An appurtenant easement does, because it attaches to the parcels rather than to the parties. A buyer of the burdened parcel takes it subject to the right, whether or not it was mentioned at the closing table.
Who maintains the area involved?
Ordinarily the party benefiting from the right, since that party is the one using it. The creating instrument can allocate the obligation differently, so read the document described in the question.
Is an easement an encumbrance?
Yes. It is a right held by someone other than the owner that affects the parcel, so it belongs to the encumbrance family and shows up in title work and in disclosure discussions.
What is the fastest way to work an easement item?
Identify the parcels first, label dominant and servient, then ask how the right was created and whether anything in the facts ended it. RE License Prep sequences these questions in the land-use drills, and your PassMap™ pushes more of them at you while the category is weak.
Where to go next: Related Pages
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