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What Is an Easement, and Do I Need One?

On Behalf of | Apr 20, 2022 | Real Estate Law

An easement is a person’s right to use someone else’s property. You might benefit from creating an easement if you want to use another person’s land for a specific purpose.

For example, you can establish an easement to construct a driveway through someone’s property to access the main road. Easements become part of the property and can be inherited or sold.

You can also use an easement for a business entity or sole individual. However, this type of easement doesn’t exist with the property. For example, a property owner might allow a person to use the pond on their land for fishing.

What Is an Easement?

An easement is the right of use over another’s land. Although you can use someone else’s property for a specific purpose, you do not own the land. Someone else is the owner and grants you access. You can’t use the property for anything other than the agreed-upon purpose unless you have the owner’s consent beforehand.

Multiple types of easements exist and can fall under one of two categories below:

  • Easements Appurtenant – An easement appurtenant is for the benefit of adjoining property. It includes a servient estate and dominant estate. The easement burdens the servient estate, while the dominant estate benefits. An easement appurtenant can be inherited, sold, or assigned.
  • Easements in Gross – An easement in gross is for the benefit of a business entity or individual. The easement terminates upon the holder’s death, preventing it from being inherited. It also can’t be assigned or sold.

How Are Easements Made?

You can create an easement through one of four means – express written, prescription, implication, or necessity.

Express Written Easement

An express easement is made when both parties agree to create the easement and put it in writing. The burden of showing that the easement exists falls on the party that wants to enforce an express easement. The person granting the express easement must have the authority to do so or ownership interest over the property.

You must outline the location and dimensions of the easement in the contract, deed, or another written document. The document must also include the scope of the easement.

Easement by Prescription

The concept of adverse possession best illustrates how to create an easement by prescription. The claimant must have used someone else’s land for at least ten years under a color of title or claim of right, continuously, openly, hostilely, and notoriously. However, adverse possession involves the right to acquire a title for the property, while easement by prescription involves the right to use the property.

The claimant must prove the easement exists by means other than using it, such as constructing a road to improve the land. An exception to this rule can include circumstances involving an owner granting someone else written consent or an oral agreement to create the easement. The claimant must also use substantial labor or money to create the easement according to the agreement.

Easement by Implication

An easement by implication occurs when a court reasonably assumes that the parties intended to create an easement even if they never expressed their intent. Proving easement by implication requires the plaintiff to show:

  • The title’s unity was severed
  • Before the severance, the use that created the easement was so continuous or obvious that the intent was to be permanent
  • The easement appears to be continuous instead of temporary
  • The easement is essential for both parties’ benefit of enjoying the land

Easement by Necessity

An easement by necessity is similar to an easement by implication. However, showing each party’s intent to create the easement is unnecessary. Creating an easement by necessity requires these elements:

  • Severance of the unity of title
  • The servient and dominant estates had a unity of title at some point before the severance
  • The easement is necessary

How Do I Get an Easement?

If you want to create an easement, you should consult an experienced real estate lawyer. You must follow state laws and procedures to establish a valid easement. Without the proper preparations, you could face legal issues in the future.

How We Can Help

Since 1952, Telpner Peterson Law Firm, LLP, has represented Council Bluffs, IA, clients in a range of real estate matters. We have the experience and resources to assist you with your easement case and try to achieve your desired outcome.

If you’re considering creating an easement or need help resolving a dispute, call us for a consultation right now at 712-309-3738.