Written by Aaron Murphy, PLS
What is an Easement?
An easement is a generally non-possessory grant by a property owner to an easement holder. Although the property is burdened by the easement for a defined use, the property owner retains title and possession of the easement for all other uses that do not conflict with the easement holder’s rights.
Some Technical Terms
- Servient (or burdened) estate: the property over which the easement is located
- Dominant (or benefitted) estate: the beneficiary of the easement
- Reciprocal: an easement both benefits and burden a parcel. An example would be an easement for access and parking within a shopping center with multiple ownerships.
How are Easements Granted?
Easements are typically granted by a conveyance document which is often a subdivision plat or an easement agreement. Easements granted by a document are sometimes called express easements since the grant, use, and terms are expressly set forth.
- When granted by a plat, the easement is often granted to the local jurisdiction for specific uses, and that jurisdiction may allow utility providers to operate within the easement area.
- When granted by an easement agreement, the document conveying the easement may describe the purposes for which the easement may be used, as well as uses within the easement area that are specifically not permitted.
Other types of easements can be unwritten, such as implied easements and prescriptive easements. An unwritten easement may be apparent from an inspection of the property but is more often memorialized in some sort of court action.
How Can Easements be Used?
Unless stated otherwise, easements are presumed to be non-exclusive. This usually means that both the burdened owner and the easement owner may make use of the easement, so long as the burdened owner does not unreasonably interfere with the easement owner’s use of the easement.
- In the case of a utility easement, it may mean that various utilities are allowed within the same easement.
- In the case of an exclusive easement, the burdened owner and/or other potential users will face restrictions on what may done with the land encumbered by the easement.
Affirmative and Negative Easements
Easements can be affirmative or negative.
- Affirmative easements allow a use of the burdened property for a specific right or purpose. Utility easements, access easements, and drainage easements are all examples of affirmative easements.
- Negative easements prohibit the burdened owner from a specific use or action. Conservation easements and view easements are examples of the restrictions that can be imposed by negative easements.
Termination
Easements can be terminated in a variety of ways. Some easements have a terminating clause, date or event written in to them, others are perpetual in nature and require consent of the benefitted owner in order to be released. Typically, this happens by a written document acknowledging that the benefitted owner is relinquishing all rights in and to the easement. It may also happen by a plat, ordinance, or resolution if a municipality is the easement holder.
