assignment of easement

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What You Should Know About Easements and Rights-of-Way

Don't be startled to discover that you must “share” part of your land.

In certain types of real estate transactions, it's not until the middle of the deal that home buyers realize the land they’re purchasing with their home is not 100% theirs. They are startled to discover that they must allow their neighbors to “share” part of their land, or that the local utility company has a right to access a pipe buried in their back yard.

How can this be? In both examples, the properties have what’s known as an 'easement,'' otherwise known as a “right-of-way.” This easement grants other designated people the right to specific types of access. Easements can be granted to another person, such as a neighbor, or to an entity, such as an electric and gas utility.

A property easement is generally written and recorded with the local assessor’s office. The documented easement will show up when a title search is conducted and it stays there indefinitely, unless both parties agree to remove it.

Without getting too deep into legal details, here are the types of easements worth knowing about.

1. Right-of-way through your property

As a homeowner, you would probably assume that you’re purchasing the land around your home, front yard, back yard and driveway. But that’s not always the case. Often, when you review the preliminary title report, you may discover that someone actually has a right-of-way through your property.

This is common in the case of a long driveway or a home that may be set back from the street. It could have been that in order for a neighboring home to have been built, that property’s owner negotiated with a previous owner to gain a right-of-way through the front of the parcel or driveway for the home you are buying.

In this scenario, you own the land, but the owner of the neighboring property has been granted right to pass through your property. In some instances, the previous owner might have been compensated for granting this access. The important thing to know is that easement carries over when a new owner assumes the property.

2. Right-of-way grant

If you’re the homeowner who needs access to a neighboring property, or you discover that the driveway or walkway to your home is actually not 100 percent yours, there’s usually nothing you need to do. It's just important to be aware of these conditions, and that this is not entirely your land.

Depending on the size of the easement and the type of land it covers, there may be some issues regarding maintenance. For example, it may be your responsibility to keep up the land: Mowing the lawn, shoveling the pathway or maintaining a fence. If there’s a maintenance ambiguity, check with the current seller to understand how she and the other owner worked this out in the past. Many times an easement like this, known as a 'Right-of-Way Grant,' has been on title through the course of three or four owners, making the original intentions or understandings not explicit. Understanding how the easement has worked in most recent practice is your best course of action.

3. Other types of easements

Anyone who lives in a condominium or some type of planned development likely spends many hours working on property they don’t own outright but have access to. Most likely, the condo or planned development’s homeowners association (HOA) actually owns those areas, but each resident or owner has a right to pass through, which is one obvious type of easement.

But some easements aren’t so obvious and take buyers and homeowners by surprise. A classic example is one in which a utility company, such as an electric and power company or a telephone company, has an easement through your land for the purpose of maintaining the utility.

There was a situation near San Jose, CA, in which the electric and gas utility had an easement through someone’s backyard. It had been on title for many years, but the existing owners didn’t know about it. One day, the electric company showed up with digging machines and materials and made a mess of the yard digging to fix a faulty line. Though the owners were shocked, there was nothing they could do.

Situations like these show why it pays to be cautious if an easement shows up in a property title search. Ask the title company, attorney or your real estate agent to retain all documents pertaining to the original easement in order to review the details. That way, you will know the exact location of the easement, its size and scope and how it's to be utilized.

Often, there’s not a problem with easements, but it’s still important to check. Any potential red flags might wind up affecting the value of your home.

In the case of the house in San Jose, for instance, what if the utility company had done permanent damage? What would be the homeowner’s recourse, if any? It’s best to vet these things before closing, rather than facing a serious real estate dilemma down the road.

Note: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinion or position of Zillow.

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An easement is the grant of a nonpossessory property interest that provides the easement holder permission to use another person's land. There are different kinds of easements. If an easement appurtenant is granted, it involves two pieces of land, where one serves as the servient tenement that bears the burden, and the other the dominant tenement , which benefits from the grant of the easement and has permission to use the servient land in some manner.

While there are several different “kinds” of easements, there are two “types” of easements specifically: affirmative and negative. 

• An affirmative easement gives the easement holder the right to do something on the grantor of the easement's land, such as travel on a road through the grantor's land. 
• On the other hand, a negative easement allows the easement holder to prevent the grantor of the easement from doing something on their land that is lawful for them to do, such as building a structure that obscures light or a scenic view.

Easements can be created in a variety of ways. They can be created by an express grant, by implication , by necessity, and by adverse possession . Easements are transferrable and transfer along with the dominant tenement.E asements can also be terminated. An easement can be terminated if it was created by necessity and the necessity ceases to exist, if the servient land is destroyed, or if it was abandoned.

Illustrative Cases :

See e.g., Corrarino v. Byrnes, 841 N.Y.S.2d 122 (N.Y. App. Div. 2007) ; Spier v. Horowitz, 791 N.Y.S.2d 156 (N.Y. App. Div. 2005)

[Last updated in October of 2022 by the Wex Definitions Team ] 

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Terminating an Easement

(This may not be the same place you live)

  What are Easements?

Easements are a legal concept in real property law which provides one individual with the legal right to use another individual’s property for a specific amount of time or for a specific purpose. Easements provide individuals with legal rights to pass through other individuals’ pieces of property, so long as their usage is consistent with the easement restrictions which were specified.

Although easements give a possessory interest in a piece of property for a certain purpose, the owner of the land still retains the title to the property. Easements may be provided to anyone, including:

• Private parties;
• Government agencies; and

There are several common types of easements, which include:

• Power lines;
• Cable television lines, although they are usually underground; and
• Public utilities.

Easements are governed by real property law because they are associated with parcels of real property.

Are There Different Types of Easements?

Do i have to give an easement, how to determine amount of compensation for easement, do easements ever end, what are the ways to terminate an easement, do i need the advice of a lawyer concerning the termination of an easement.

Yes, there are different types of easements as different states may recognize different types, depending upon the property laws of that state. There are three general categories of types of easements, including:

• An easement by prescription;
• An easement by necessity; and
• A negative easement.

An easement by prescription, or a prescriptive easement , is an implied easement which an individual gains by adverse possession. An individual may acquire an easement by adverse possession when they use that portion of the land, without permission from the owner, for the period of time which is required by the law of the state in a manner which is:

• Uninterrupted;
• Hostile; and

An easement by necessity is an easement which is created by the law instead of by an agreement between neighbors or by a specific promise. In some cases, the law will imply the existence of an easement to achieve just results.

A common example of this type of easement includes which a parcel of land is landlocked, meaning that it cannot be accessed except by traveling over another parcel of property. In this situation, the law will create an easement by necessity to allow the owner of the landlocked parcel to access their own property by using another individual’s property.

Negative easements create obligations or restrictions regarding what a property owner can or cannot do on their property or how they can use their property in a manner which would otherwise be legal. Generally, negative easements are treated as restrictive covenants.

A common example of this type of easement includes situations where buildings are being built which may obstruct views from existing buildings. For example, if a new building was being built at the beach, an existing hotel would not want their ocean view blocked by the new building. A negative easement would be used to address this concern.

There are also numerous other types of easements, including:

• Express grants;
• Reservation easements;
• Affirmative easements;
• Utility easements;
• Public easements; and,
• Easement by estoppel.

As previously noted, easements by necessity are easements which are created by law to permit an individual to have a right of access to their property. If an individual’s land is subject to an easement by necessity, they are not permitted to interfere with their neighbor’s use of the easement to access their home.

Additionally, some utility companies or cities are granted easements which are recorded in the plat records prior to any homes or buildings being constructed on the land. A utility easement is an easement which is granted to a utility company or a municipality which provides them the right to access and use an individual’s property for the purpose of providing a public utility, which may include:

• Electricity;
• Sewer lines; and

A utility easement attaches to a property deed and passes to all future owners of the property whenever it is transferred or sold.

It is important to note that there are some types of easements for which an individual may seek compensation and there are some which the law allows that do not require compensation. The amount of compensation provided for a private easement is typically negotiated in the real estate contract.

When an individual is negotiating an easement, it is important to take the following steps:

• Specify the scope of the easement;
• Negotiate a price; and
• Record the agreement in writing.

It is very important to specify the scope of the easement when an individual is granting a private easement to another party. For example, if an individual is granting their neighbor the right to use their private fishing lake or pond, they should ensure they specify the terms of the easement, including:

• The times the easement can be used;
• The location of the easement; and
• Any other restrictions.

It is important to negotiate a price when an individual is negotiating an easement. An individual should search the local records to obtain an idea of the general price for such an easement.

For example, if an individual is allowing another individual to enter their land and access their pond on a temporary basis, the individual may wish to charge a fee such as $100 per year. On the other hand, if the individual is allowing the other party to access the pond on a permanent basis, it may be acceptable to negotiate for a higher fee for the easement.

It is very important to get the easement agreement in writing. The agreement should be signed by all of the parties involved and be notarized.

Once the easement has been fully executed, the individual should file the easement in their local county’s land records office.

Generally, an easement runs with the land. This means, when the ownership of the property changes, the easement remains and has no set termination date.

However, an easement may be given conditions including time limits. In some cases, an easement may be terminated, depending upon the type of easement.

In order to terminate an easement, there must be a condition for the purpose of the easement which has changed, which may include:

• The purpose for creation of the easement no longer exists;
• Ownership of the land where the easement sits and of the easement merges into one owner;
• The owner of the land releases the easement;
• Abandonment of the easement;
• Nonuse if it is a prescriptive easement ;
• Adverse possession by the owner of the land which is affected by the easement;
• Court decision of a quiet title action against someone claiming an easement; or
• Misuse of the easement.

It is essential to have the assistance of a property lawyer concerning the termination of an easement. Terminating an easement affects an individual’s long term property rights whether they are the owner of the easement or the owner of the land upon which the easement sits.

Easements can be common on real property. If you are a landowner, you have the right to use your property as you see fit, including granting easements.

In some cases, however, it may be difficult to locate an easement on your property. An easement may also interfere with the use of your property.

Your attorney can help with any easement issues you have, whether you are negotiating an easement or you are having issues with an existing easement. Your lawyer can assist you with ensuring your rights are protected as well as ensure that the property transaction is properly recorded .

Your attorney can also assist you with determining if there are any valid easements which exist on your property. If you have to go to court, your attorney will represent you.

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What is an Easement

For the creation of an easement to be legally binding, the document must be filed with the county Recorder. Defining the exact location, nature, and purpose of an easement in a deed or other legal document creates an “express easement.”

Types of Easement

Utility easement, private easement.

Private easements occur when a property owner sells an easement to an individual. This may be for a number of reasons, including giving a neighbor driveway access, or sharing a sewer line or well with a neighbor. Before granting a private easement, or purchasing a property that has this type of easement, it is vital that the property owner or potential buyer review the documents carefully, as a private easement often limits what the property owner can do on or around the defined area. For example, a property owner who has granted a solar access easement to his neighbor may not be allowed to plant trees or construct buildings, either of which would block sunlight, next to the easement

Easement by Necessity

Prescriptive easement, public easement.

A public easement grants a certain defined area of land for public use. An example would be the granting of public access of a portion of the landowner’s property for a park or touring.

Easement by Prior Use

Easement rights.

An easement holder is entitled to do whatever is reasonably necessary to fully utilize the property for the purpose for which the easement was created. His rights under an easement do not allow, however, the imposition of an unreasonable burden for the property owner. The property owner may also use the land as long as such use does not interfere with the purpose of the easement.

Transferring an Easement

Duration of an easement, trespass upon an easement, terminating an easement, related legal terms and issues.

Easement Agreement

Jump to section.

An easement agreement is a legal contract allowing someone to use or access another person's commercial or residential property for a specific need and period. It grants a non-possessory interest in the land, meaning the person with the easement does not own the land but has certain rights to use it. In this blog post, we will discuss the concept of easements and understand the primary elements of an easement agreement.

Essential Elements of an Easement Agreement

The essential elements of an easement agreement are as follows:

• Identifying Parties Involved: Identifying parties involved in the easement agreement is essential to avoid confusion. These parties include the grantor, the property owner granting the easement, and the grantee, the individual or entity receiving the easement rights. It is important to provide both parties' full legal names and contact information.
• Describing Easement: A comprehensive description of the easement should be included in the agreement, covering its location, size, and boundaries. This section should incorporate a legal description or a map illustrating the specific area of the property granted for use.
• Stating Purpose and Scope: The purpose for which the easement is granted must be clearly stated in the agreement. Whether for accessing a public road, utility lines, or other specific uses, the agreement should outline the intended scope and limitations of the easement. It ensures the easement purpose remains clear, minimizing potential misunderstandings or conflicts.
• Determining the Rights and Responsibilities: This section should specify the rights and responsibilities of both the grantor and the grantee. It should clearly define the activities the grantee is permitted to carry out within the easement area and any restrictions or limitations the grantor imposes. For instance, if the easement is for utility lines, the grantee may have the right to install and maintain those lines, while the grantor retains the right to access the area for repairs or inspections.
• Addressing Maintenance and Repairs: The agreement should address the responsibility for maintaining and repairing the easement area. It should explicitly state who is accountable for the upkeep, including any structures, fences, or other improvements within the easement. Additionally, the agreement may outline how the costs for maintenance and repairs will be divided between the parties.
• Stating Duration and Termination: The easement agreement should clearly state the easement term, indicating whether it is temporary or perpetual. If the easement has an expiration date, the agreement should outline the process for renewal or termination. In the event of termination, the agreement should address the property restored to its original condition.
• Clarifying Compensation and Consideration: There may be cases where the grantor requires compensation or consideration for granting the easement rights. The agreement should explicitly state the amount or type of compensation, if applicable, and the payment terms and conditions .
• Covering Insurance and Indemnification: The easement agreement should cover insurance requirements to protect both parties. Also, the grantee may need to maintain liability insurance to cover any potential damages or injuries arising from using the easement. Additionally, the agreement should include an indemnification clause , which states that the grantee will hold the grantor harmless from any liabilities or claims associated with the easement.
• Including Dispute Resolution: The easement agreement should include provisions for dispute resolution to avoid potential conflicts. It may involve negotiation, mediation, or arbitration, outlining the specific process to follow in the event of a dispute. By establishing a fair procedure, the parties can seek a resolution without resorting to costly litigation.

Types of Easement Agreements

Easements refer to legal rights given to individuals or entities allowing them to utilize or enter someone else's property for a specific purpose. These rights are established through legal agreements and are important in property law . Familiarizing oneself with the different types of easements is essential for property owners and those seeking access or usage rights. Below are the different kinds of easements, with their characteristics and legal implications.

Positive Easements

Positive easements entail granting the right to use or access another person's property. They can be further grouped into the following subcategories:

• Right-of-Way Easements: Right-of-way easements, also known as easements of way, enable individuals to travel across someone else's property. This type of easement commonly applies to driveways, roads, or pathways providing access to specific areas.
• Support Easements: Support easements grant the right to have a structure on one property supported by the land of an adjoining property. This type of easement is vital for properties where buildings or structures depend on the stability and support provided by the adjacent land.
• Utility Easements: Utility easements allow utility companies, such as water, gas, or electricity providers, to install and maintain necessary infrastructure on a property to provide services. These easements ensure the proper functioning and maintenance of essential utility systems.

Negative Easements

Negative easements restrict or limit specific actions or activities a property owner can undertake. The primary subcategories of negative easements include:

• Easements for Light and Air: This easement prevents a property owner from constructing structures or vegetation that obstruct the passage of light and air to an adjacent property. While this usually benefits the property owner, it can sometimes hinder easy movement and construction rights.
• View Easements: View easements safeguard a property owner's scenic or panoramic view by prohibiting the construction of buildings or structures that obstruct the view. They are commonly utilized in areas with significant natural landscapes.

Prescriptive Easements

Prescriptive easements are established through continuous, uninterrupted use of someone else's property without formal permission. The subcategories of a prescriptive easement include the following:

• Open and Apparent Use: The property owner must be able to see how the property is being used. It should not be done in secret or behind closed doors.
• Continuous Use: The usage must be continuous for a set amount of time, usually several years.
• Adverse Use: The use must be without the property owner's permission and against their interests.

Nicholas M.

Key Terms for Easement Agreements

• Dominant Property: The property that receives the advantages of an easement, also referred to as the dominant tenement. The dominant property possessor can utilize the easement for a designated purpose.
• Servient Property: This property bears the burden of an easement, also known as the servient tenement. The possessor of the servient property can permit the possessor of the dominant property to utilize the easement.
• Easement Appurtenant: An easement connected to the land and benefits the owner of an adjacent property. It typically remains with the land and remains valid even if the ownership of the property changes.
• Easement in Gross: This easement benefits a specific individual or entity rather than an adjacent property. It does not transfer with the land and usually ends upon the easement holder's death or the entity's dissolution.
• Affirmative Easement: This easement grants the right to carry out specific activities on the servient property, such as crossing the land, installing utilities, or accessing a water source.

Final Thoughts on Easement Agreements

Easement agreements are essential legal instruments determining the rights and restrictions of using another person's property. By clearly documenting the easement provisions, parties can reduce misunderstandings and conflicts. Also, seeking professional legal advice and preparing a comprehensive easement agreement can guarantee a seamless and more secure real estate experience for all parties concerned.

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ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.

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Easement: Definition, Types, and Examples

James Chen, CMT is an expert trader, investment adviser, and global market strategist.

What Is an Easement?

An easement, or easement agreement, is a real estate concept that defines a scenario in which one party uses the property of another party, where a fee is paid to the owner of the property in return for the right of easement. Easements are often purchased by public utility companies for the right to erect telephone poles or run pipes either above or beneath private property. However, while fees are paid to the property owner, easements can negatively affect property values in that unsightly power lines, for example, can lower the visual appeal of a piece of land.

Key Takeaways

• An easement is an agreement between two parties, where one is granted land access in exchange for a fee.
• Utility easements are the most common, such as when a telephone or power company runs lines through a property for which they've been granted an easement.
• A private easement agreement is a deal between two parties that gives one the right to use a piece of the other's property for their personal needs.
• An easement of necessity happens when an individual needs to use another individual's property so as to gain access to their own.

How an Easement Works

Used to describe a high-level agreement between the owner of a property and another party—either a person or an organization—a typical easement agreement outlines a form of payment by the petitioner to the owner for the right to utilize the subject of easement for a specific purpose.

An easement is unique to the agreement between the two parties involved. As such, easement agreements are structured so that the specific use of the property is explicitly outlined and there is a termination of easement given to the property owner. Such agreements are sometimes transferred in a property sale, so it's important for potential buyers to know if there are any easements on the property being evaluated.

Examples of an Easement

There are three common types of easement agreements. Which type of easement is granted will depend on the goals of the individual parties.

The first is a utility easement. This type of easement is an agreement between a property owner and a utility company that allows the utility company to run power lines, water piping, or other types of utilities through a property. Utility easement agreements are often included in a property's deed or held by a city or municipality.

The second type of common easement is a private easement agreement between two private parties. This easement is fairly standard in that it gives one party the right to use a piece of property for personal needs. A farmer may need access to a pond or additional agricultural land, for example, and a private easement agreement between his neighbor and himself gives him access to these needs. Further, if piping or a similar utility is required to be run through a neighboring property for a person's well system, the agreement is handled through a private easement.

Finally, there is a third common easement agreement referred to as an easement by necessity. This type of easement is more liberal in that it does not require a written agreement and is enforceable by local laws. An easement by necessity arises when one party is required to use another person's property. For example, when a person is required to use a neighbor's driveway to access his home, it's considered an easement by necessity.

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Buyer Guides

Easements: know your property rights.

Found out the home you’re planning to buy has an easement on the property? That could be a good thing, a bad thing, or an entirely neutral thing. Here’s what easements are, and how they affect your property rights.

What are property easements?

An easement gives a person or organization a legal right to use someone else’s land—but only for a needed purpose. A utility company may have an easement on your property to access an electrical pole. Or if your driveway overlaps your property line, you might rely on an easement on your neighbor’s property to get to your garage.

What you need to know about easements when buying a home:

1. does this property have easements.

Legally, sellers must disclose easements on their property during the sale, so you should know if an easement exists by the time you have a purchase agreement, if not sooner. But if you’re buying a bank-owned home being sold as-is, you should do some extra research yourself. Your real estate agent can help you decide if there’s reason to suspect a property might have an easement on it, but contact the city to find out for sure. Find out exactly where and what type of easements they are. Some easements, for example, remain after you buy the house, but others don’t.

2. What types of easements are there?

The property rights an easement allows depends on the rules of your specific easement. There are many types, but these are some of the features that help define them:

• Appurtenant versus gross easements: An appurtenant easement allows a property owner access to land that’s only accessible through a neighbor’s land. These technically benefit a property. An easement in gross benefits an individual or entity, whether that’s a neighbor, a utility company, or other organization.
• Public versus private : Both appurtenant and gross easements can grant access to public or private entities or properties. A private easement might allow a neighbor to access your property, and a public one might allow any member of the public to walk through your yard.
• Affirmative versus negative : Most easements allow something to happen, which are affirmative. But they can prevent actions, too, like blocking someone’s solar panels with a line of trees, which would be a negative easement. (That’s right: easements can cover rights to air space, area underground, and the surface of land.)

Prescriptive easement : Prescriptive describes the way in which an easement comes into being. This is when someone is using a property owner’s land regularly for a certain period of time (set by state law) without being restricted by the owner. This is commonly known as “squatter’s rights.”

3. What are your property rights and easement rights?

If you buy a house with an easement, odds are, you’ll need to abide by the rules of the easement—because they’re not often put in place lightly. Let’s say you bought beachfront property, and the only way the neighbors can access the public beach is through a path in your yard. You’d legally need to let them use it, because they have a right to access the public beach. Similarly, if a utility company has an easement to access a pipe under your yard, there’s not much you can do to change that.

Otherwise, you have the right to use your property in any way you’d like — so long as that doesn’t include anything that prevents the easement from being accessed in its intended way.

4. What if you’re buying a property that relies on an easement on someone else’s property?

If you fall in love with a home that’s perfect and in the right neighborhood , but it has an extremely narrow driveway, you might be pleased to find out that you have an easement that allows you use a few feet of your neighbor’s property to get in and out of your car. Just make sure the terms of the easement guarantee it will stay with the property after you buy it, and be open and friendly with your neighbor about the rules of the easement. They have to let you use it, but if they’d prefer you to treat their property in a certain way, respecting their wishes will help keep things neighborly.

5. How can easements affect my renovations or additions?

If you plan to build a new construction home or an addition, it’s especially important to know whether there are any easements on a property before you buy. You can find out by looking over your paperwork. You’ll find easements on deeds, plats, and other homeowner documents. If your neighbor received an easement to ensure a view of a lake, for example, you couldn’t renovate, expand, or even plant a tree that would block your neighbor’s view.

6. Can easements be challenged?

They can. But you would need to go to court to challenge an easement, so it’s not easy to do in the middle of home buying. If the easement holder agrees to terminate, it could be a smoother process. And in some cases, easements have an expiration date (this would be stated in your deed), so that could be good news.

Other cases are challengeable, but harder. For instance, if there’s a prescriptive easement that’s not in continuous use (like a shed was built over your property line, but it’s no longer used), you could challenge it. However, there’s no guarantee you would win.

Easements aren’t the only legal constraints that could be on a potential property. Next, learn about how homeowner’s association rules might affect the home you want to buy.

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by   Ronna L. DeLoe, Esq.

Ronna L. DeLoe is a freelance writer and a published author who has written hundreds of legal articles. She does...

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Updated on: April 4, 2023 · 3 min read

What is an easement?

• Determining whether there's an easement on property

The consequences of having an easement on your property

How to remove an easement from your property.

Whether an easement affects you and your property depends on what type of easement is on the land, how long it lasts, and whether it prevents you from doing what you want with your property.

It's important to know about property easements before you buy a house because you may find that you're stuck with an easement you don't want.

A property easement grants someone else the limited right to use your land for a specific purpose. For example, a common easement is one that a utility company has for placing cables, pipes, or other equipment under or over the property to allow property owners to use their utilities.

Another common easement is if you and your neighbor share a driveway. In some cases, one of you—not both—will own the driveway, but the other will have the right to the easement and use of the driveway to access their house.

Determining whether there's an easement on property

Before buying property, it's important to hire a real estate attorney to help you check if there's an easement on the property or do it yourself.

To check for an easement on the property, you can take the following steps:

• Contact the utility companies to see if they have any easements on your property.
• Check with the county clerk or county land records office to find out whether the prior deed shows an easement.
• Obtain a survey of the property to see if there are any easements and where they're located.
• Get a title company to do a title search of the property, which will uncover any easements and other burdens on the property.
• Make sure to get a warranty deed from the owner, as it must show any easements on the property.

If there's an easement on the property, it's usually listed on your deed. You'll want to check if you're the easement user, known as the dominant property, or if you're the property owner who must allow your neighbor to use your property, known as the servient property.

The servient property owner cannot block the use of the easement.

Whether you're the dominant or servient property of an easement, having an easement can sometimes negatively affect the value of your property. Not everyone wants to buy property with an easement on it, so the property with the easement may take longer to sell.

If you and your neighbor share a driveway due to an easement, and if you're the servient property, you can't stop your neighbor from using the driveway.

An easement continues even after you sell the property.

However, if you've given your neighbor access to an area of your property for a specific purpose, and it's not in the deed, this type of easement is an "easement in gross." For example, you may decide to allow your neighbor to use your property to access the lake that's only behind your house.

This easement does not transfer to a new buyer, but is between you and the easement holder. This means that if the neighbor moves, you don't have to grant the same easement, or any easement at all, to the new owner.

Utility easements are often a problem because if you want to build something such as an in-ground swimming pool on your own land, you might be unable to do so if there are pipes and cables in the way. Likewise, if the utility company has an easement to erect poles or power lines, your property value could take a nosedive. s.

It's possible, in some cases, to remove an easement from your property. Some of the ways to remove an easement include the following:

• Bringing a lawsuit to contest the easement.
• The easement has expired.
• The easement is no longer usable through no fault of the servient property owner.
• The easement holder signs a release to the servient property holder, removing the easement.
• The servient property owner purchases the dominant property, thereby removing the easement.
• The dominant easement holder gives up the easement by transferring the easement in a deed to the servient owner.

Real estate law and easements are tricky, so hiring a real estate attorney is a good idea when trying to discover what hidden issues come with the property. If you find that the property you want comes with an easement, decide if it's the type of easement you can live with or whether you should walk away.

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EASEMENTS: A PRIMER

Determining the scope and validity of easement rights often presents a problem for attorneys in the practice of real estate. Issues such as creation, scope, and termination of an easement frequently surface in actions for quieting title, when property is sold, or when one party seeks to expand its easement rights. While easement rights depend mostly on the particular facts of individual scenarios, there are common rules that can be relied upon in all cases. This article provides a general overview of the rights and characteristics of easements in Illinois.

General Definitions and Classifications

Easements are ordinarily divided into two broad categories: easements appurtenant and easements in gross. An easement appurtenant is the right of one property owner to use the land of another for a specific purpose. It requires a dominant and a servient estate, where the dominant estate has the easement right over the burdened property, or servient estate. An easement appurtenant is created when the grantor reserves a right in the nature of an easement for the benefit of another land that was originally a part of the grantor's land. When the properties are not adjacent or joined to each other, an easement can still be considered appurtenant if both the dominant and servient estates are clearly defined. This easement right generally runs with the land, or passes with the land, and is therefore transferable by conveyance. Even if the instrument of conveyance does not specifically mention the existence of the easement appurtenant, the easement is still valid since an easement appurtenant passes with the transfer of the dominant land. It is incapable of existence separate from the particular land to which it is attached.

An easement in gross, on the other hand, is a personal interest in the property of another and is not assignable or inheritable. It is not connected to or for the benefit of other land. It is only a right to use the land for a specific purpose. The most common easement in gross appears in the form of a public utility easement.

To determine whether an easement is appurtenant or in gross, examine the nature of the rights and intention of the parties creating the easement. Courts commonly do not favor construction of an easement in gross when an easement appurtenant can be fairly construed from the facts. If the easement is in its nature an appropriate and useful adjunct of the lands conveyed, and there is nothing to show that the parties intended it to be a mere personal right, the easement is appurtenant.

Easements are also classified as affirmative or negative. An affirmative easement authorizes the use of the property of another that would normally give cause to a right of action in the absence of the easement. An example would be a right of way or a right to discharge matter on another person's land. A negative easement grants a right to the dominant estate owner to restrict the servient estate owner's use of the servient estate in a specific way.

Creation of Easements

Easements can be created in one of three ways: express creation; creation by prescription; or operation of law.

Express Creation

An easement can be expressly created by a specific grant, by reservation in a deed conveying property, by contract or agreement, by lease, or by plat. All these methods require a written instrument. The intentional creation of an easement is the most straightforward and effective method. Ambiguous language in the instrument may give rise to conflicting interpretations. Although case law has indicated that no particular words are necessary to constitute a grant of an easement, to avoid future conflicts in determining the validity and scope of the easement, it is best that drafters use clear, concise, and unambiguous language in expressing the particular characteristics of the easement. Generally, instruments used to create an easement should contain a description of the easement, its purpose, any conditions or restrictions to its use, the party responsible for maintenance, and duration, if any.

The terms creating the easement must be definite and unequivocal. In Coomer v Chicago and NW Transp Co , 91 Ill App 3d 17, 414 NE2d 865, 46 Ill Dec 812 (1980), the court held that because an easement is an interest in land, a grant of easement by contract must contain all the formal requirements of a deed.

An express creation of an easement can also be accomplished by deed, plat, or lease. Again, clear and concise language dictating the terms of the easement in the instrument and identifying the intent of the parties will be of major concern. Particularly with easements created by plat of subdivision, appropriate language stating the nature of use of the easement is necessary to ensure the validity of the easement. In addition, the plat has to meet all statutory requirements for recordation. A declaration is often recorded along with the subdivision plat. When the declaration is properly made and is comprehensive in details such as access, parking, and utility easements, it will usually run with the land and be binding upon all subsequent owners of subdivision lots.

Creation by Prescription

An easement can also be created by prescription. This essentially means claiming title to the easement through adverse possession, and the requirements are virtually the same. To establish an easement by prescription, the party claiming the easement must demonstrate that use of the easement has met the following criteria: adverse, exclusive, continuous and uninterrupted use, under claim of right, and with full knowledge of the owner of the land and without consent, all for 20 years. All these conditions must be met, as evidence to the contrary will defeat the claim. Once an easement by prescription is established, the scope of use will be determined by the actual use during the statutory period and cannot be intensified. In re Onarga ,179 Ill App 3d 493, 534 NE2d 226, 128 Ill Dec 206, (1989).

Operation of Law

In addition to prescriptive use, operation of law can create an easement in several other ways. An easement can also arise by implication or by necessity. The requirements for creating an implied easement, whether in favor of the grantor or the grantee, must include the following: severance of title; the use giving rise to the easement must have been continuous, obvious, or manifestly permanent prior to severance of title; and the claimed easement must be necessary to the beneficial enjoyment of land granted or retained. In Granite Properties Ltd v Manns , 140 Ill App 3d 561, 487 NE2d 1230, 94 Ill Dec 353 (1986), the court found that the claimed easement by implication over grantee's apartment complex driveway alongside grantor's shopping center was necessary to the beneficial enjoyment of the shopping center. The driveway had been in use by the grantor for several years, the grantees were aware of the driveway and its use by the grantor before they purchased the property, and the easement was required to make deliveries to the shopping center. Id.

An easement by necessity is usually in the form of an access road to prevent property from being landlocked. It is created when an original common ownership is subsequently divided so that one parcel of land is landlocked without the access easement. However, once an alternative is found, the access easement ceases to exist.

Termination of Easements

Easements can be terminated through release, merger, or abandonment, or lost by adverse possession. 25 AM JUR 2D Easements and Licenses §§ 112-119 (1996). Termination occurs by release when all the dominant owners agree to abandon the easement. City of Chicago v Hogberg , 217 Ill 180, 75 NE 542 (1905). To terminate an easement by abandonment, the party must first prove that the dominant estate owner intended to abandon use of the easement. Beloit Foundry Co v Ryan , 28 Ill 2d 379, 192 NE2d 384 (1963). However, a showing of failure to use the land is insufficient on its own to prove abandonment. Demonstration of intent is necessary and can be implied from the circumstances, unless it has been clearly expressed. For example, Illinois courts have held that adverse acts of the servient owner acknowledged by the dominant owner can be considered when making a determination of intent to abandon. Chicago Title & Trust Co v Wabash-Randolph Corp , 384 Ill 78, 51 NE2d 132 (1943).

An easement may also terminate through a merger of interests. A merger occurs when the title and possession of the dominant and servient estate unify in one owner. A merger serves to terminate an easement because no one can have an easement in his or her own land. However, not all mergers will terminate an easement. For example, a transfer to the dominant estate owner of a two-thirds interest in the servient estate does not extinguish an easement. In Beloit Foundry , the court found that an easement appurtenant to land may be extinguished by surrender or release from the dominant owner to the servient owner. However, a release as to one dominant tract does not thereby terminate the right to the other dominant tracts. In Kaufman v 666 North Water Bldg Corp , 130 Ill App 2d 785, 267 NE2d 345 (1971), the court decided that where two contiguous parcels were servient to each other by appurtenant easements, if a portion of one of these parcels was conveyed back to the owner of its dominant estate, the easements of the remaining portion were not destroyed by merger.

Extent of Right of Use

Generally, the precise language of the grant of easement, or the purpose for which it was created, determines the extent of the easement. Usually, courts will not limit, impair, or interfere with the use and enjoyment of an easement when it is within the lawful scope, domain, and purpose as originally established. When the extent of use is unspecified or unclear, courts will determine from the facts and circumstances what is reasonably necessary to carry out the purposes of the easement. See Koplin v Hinsdale Hosp , 207 Ill App 3d 219, 564 NE2d 1347 (1990); Farmers Grain & Supply Co v Toledo , P & W RR, 316 Ill App 116, 44 NE2d 77 (1942). While an easement owner is entitled to full enjoyment and every right connected to the enjoyment of the easement, the easement owner does not have a right to hamper the servient estate owner's control or use of the land by going beyond what is reasonable use of the easement. Doan v Allgood , 310 Ill 381, 141 NE 779 (1923). However, an easement owner is limited to using the easement only to benefit the land the easement was originally intended to benefit, and not other lands the easement owner may own. Beloit , 28 Ill 379, 192 NE2d 384; Miller v Weingart , 317 Ill 179, 147 NE 804 (1925).

For right of way easements, an easement owner has the right to reasonable use in the purpose for which it was acquired. Keessen v Zarattini , 119 Ill App 2d 284, 256 NE2d 377 (1969). Generally a grant of a right of way easement does not include a right to have that way kept open to the sky for light and air. Rudolph Wurlitzer Co v Bank of Chicago , 290 Ill 72, 124 NE 844 (1919). Illinois courts, however, have allowed railroad companies to erect structures over their right of ways when no interference with the reasonable use of the easement as a passageway would result. Farmers Grain & Supply Co , 316 Ill App 116, 44 NE2d 77.

While the privileges arising from the easement are usually reserved for the easement owner, this exclusivity in use does not prevent the servient estate owner from using the easement. A servient estate owner also has the right to use the easement for any purpose as long as the use does not disrupt the enjoyment of the easement by the dominant estate owner. A use will be found obstructive and improper if it results in a material and unlawful interference with the easement owner's use. Courts have held that fences, gates and posts are obstructions to the right of ingress and egress over the right of way, and therefore alter or limit use of the easement. Healey v Roberts , 109 Ill App 3d 557, 440 NE2d 647, Ill Dec 927 (1982); see also Batchelder Co v Gustafson , 32 Ill App 3d 14, 335 NE2d 565 (1975). The easement owner has the right to remove an improper obstruction.

Maintenance

Unless agreement is made otherwise, it is the easement owner's duty and right to maintain the easement. However, the easement owner is restricted from improving the easement to the extent of materially altering the character of the easement where the alterations would greatly burden the servient estate or interfere with the use and enjoyment of the servient estate by its owner.

Exclusivity of Use

Persons entitled to use the easement are mostly dependent upon the terms of the grant or agreement as interpreted by of the circumstances when the grant or agreement was made. For right-of-way easements, when entitlement is unclear, courts have held that the easement is not intended to benefit the general public, but is reserved for the easement holder. In Marlatt v Peoria Water Works Co , 114 Ill App 2d 11, 252 NE2d 403 (1969), the Illinois Supreme Court held that where a public utility easement in a recorded plat that was reserved for installing and maintaining gas pipes, conduits, cables, poles, and wires for the purposes of serving the subdivision and adjoining property with gas, electric, and telephone services, the water company was not permitted to locate, construct, and maintain a water main under the easement strip because the language of the reservation did not include water services.

These are some basic rules of construction for examining easements. Should you have an easement with a more specific question, please call the Underwriting Department to discuss it. For information on how to insure easements, or how to raise exceptions for easements, please consult your Underwriting Manual or call the Underwriting Department.

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