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What is an Easement?

Updated on August 28, 2010

An easement, in law, is the right to make some limited use of another person's land for a specific purpose, or the right to have another person refrain from making certain uses of his own land. An easement involving the privilege of doing acts on lands owned by another is sometimes called an affirmative easement, while one consisting of a deprivation of the right of an owner to use his own land as freely as he otherwise could is called a negative easement.

Examples of rights frequently included in affirmative easements are the right to pass over another's land (known as a right of way); the right to pollute air over another's land; the right to have buildings supported by another's land; and the maintenance of aqueducts, drains, and sewers on another's property. Examples of negative easements are the assurance that the owner of adjacent land will refrain from obstructing light and air; the right not to have another person's buildings overhang one's adjoining land; and the suspension or modification of water rights between neighboring landowners.

Easements are generally classified as appurtenant or in gross. An easement that is incidental to the ownership of a piece of land and conducive to its beneficial use is known as appurtenant to that land. An easement that consists simply of a personal right to make a limited use of another's land, without reference to the ownership of a particular piece of land by the owner of the easement, is called in gross. Land to which an appurtenant easement is attached is called the dominant tenement or estate, while land that is in some manner burdened by the existence of an easement is called the servient tenement or estate. The dominant and servient tenements are usually adjacent to each other, but this is not an absolute requirement.

An easement is usually created by an express grant, but it may also arise from an express reservation, an implied grant or reservation, an adverse use of another's land for a certain period (called prescription), the operation of a statute (such as proceedings under the power of eminent domain), or an act or representation by the owner of land that precludes him from denying the existence of an easement (called estoppel). An easement by grant must generally be in writing, and sometimes must be by an instrument under seal. An easement by reservation is created when a person conveys a portion of his land, reserving certain privileges in it for the benefit of neighboring land retained by him.

An easement by implied grant (for the benefit of land conveyed) or by implied reservation (for the benefit of land retained) arises when the circumstances are such that the law presumes, an intention on the part of the grantor and the grantee that such an easement shall exist.

An easement by prescription may be acquired by making a certain use of land (such as for a right of way) without the owner's permission for a prescribed period of time. An example of an easement by estoppel is the right of way on land retained by a grantor when the grantor, in conveying an adjacent parcel, described it as bounded by a road that is nonexistent.

An easement can be extinguished by the cessation of the purpose for which it was created, by the vesting of title to the dominant and servient tenements in the same person, by express release, or by abandonment.

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