Scura, Wigfield, Heyer, Stevens & Cammarota Blog
Understanding Easements: an Essential Part of Purchasing Property
Easements are a common area of property law. But many people do not know what an easement is and how it can affect them until they are late in the home-purchasing process. A qualified attorney is essential in the home-buying process to direct you regarding potential easements you may encounter.
WHAT IS AN EASEMENT & THE VARIOUS TYPES
An easement is another person's non-possessory property rights in your property. This means that another person has the right to use or access your property, even though you own the property and not them. Easements typically remain in effect even if the property is sold. So, when you are buying a piece of property, it is essential that you or an attorney identifies any easements on the land. One example may be that your neighbor is allowed to use a driveway on your property to access their own. However, that is just one example of one type of easement, not all easements are created equal. There are different categories of easements. Easements are either appurtenant or in gross. An appurtenant easement benefits an adjoining property, regardless of who owns the property. The example given above is an appurtenant easement because regardless of neighboring property owner’s identity, they will always be able to use your driveway as a means of accessing their own property. In appurtenant easements there is a dominant and servient estate. The dominant estate is the property that is granted access to someone else’s property; the land that is benefiting from the easement. The servient estate is the parcel that is being utilized by someone other than its true owner; it is “serving” another person; it is being burdened by the easement. Contrarily, an easement in gross benefits a single person or company rather than a parcel of land. Typically, an easement in gross is not sold with the sale of the land. An example of an easement in gross is a company that utilizes your land as a place for its promotional billboard. This easement is only benefiting the company and not another parcel of land and thus it is an in gross easement.
HOW TO CREATE AN EASEMENT
Easements, as mentioned above, are not all created equal, and thus there are different methods to bring an easement to fruition. It is good to know how an easement can be created not only in the event that you wish to create one yourself, but it can also help to identify an easement that has already been created. The methods will be outlined as follows.
An express easement is one that is written down and preserved in the deed to the land. Express easements are the most common type. They should be easily identifiable in a title search when you go to buy a piece of property.
A prescriptive easement is a more complex easement creation. There are a few elements that constitute a prescriptive easement. A brief overview is that a prescriptive easement is one that is formed because the dominant estate uses the servient estate, without their permission for a certain amount of time.
If an easement is not expressly written in a document, it may still be created through implication. Certain circumstances may give way to the creation of an easement without it ever being memorialized. Under this category, there are two main types of implied easements. The first is an easement by necessity. An easement by necessity is created when the easement is necessary for use of dominant estate. The second type of implied is easement is an easement by prior use. This is an easement where the servient estate was continuously being used, and the owner was aware of this use. The constant use of the land without and objection creates an easement by prior use.
HOW TO TERMINATE AN EASEMENT
Neighborly disputes regarding easements commonly arise. A dispute many arise over easement misuse, interference, trespass and more. If a dispute should arise there may be a way to terminate the easement. An easement typically is express and memorialized in the deed to the land, thus it is not always easy to terminate. In that event, an experienced property attorney may be better suited to assist you. However, the following are methods of termination.
Termination by Express Agreement
An express easement may dictate in its document the manner in which the easement will terminate. Thus, the easement will end in whatever way that the document has already predetermined.
Termination by Abandonment
This type of termination occurs when the easement holder stops using the easement and intends to do so permanently. If this occurs, the easement is considered abandoned.
Termination by Merger
When one person purchases both the dominant and servient estate then there is no need for the easement. This is because one person has the full property rights to both estates, the estates are considered merged.
Termination by Passage of Time
An easement may also be temporary. In the terms of an easement, it may stipulate how long the easement is in effect. Thus, after that period of time ends, the easement is over.
Termination upon end of Necessity
Finally, if an easement is no longer necessary it may also be terminated.
Overall, easements are a specific and detailed part of property law. Yet, they are very prevalent in the house-purchasing process. An experienced attorney is essential to assist you with any easements that may arise when you decide to purchase a piece of land. The qualified real property attorney at Scura, Wigfield, Heyer, Stevens & Cammarota, LLP can help. Please contact us today if you have any further questions or would like assistance with your real property experiences.
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