Easement
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An easement is the right to do something or the right to prevent something over the real property of another. At common law, an easement came to be treated as a property right in itself and is still treated as a kind of property by most jurisdictions. In some jurisdictions, another term for easement is equitable servitude, although easements do not have their origin in equity.
The right is often described as the right to use the land of another for a special purpose. Unlike a lease, an easement does not give the holder a right of "possession" of the property, only a right of use. It is distinguished from a license that only gives one a personal privilege to do something on the land of another. An example of a license is the right to park a car in a parking lot with the consent of the parking lot owner. Licenses in general can be terminated by the property owner much more easily than easements. This is different although similar to a wayleave.
Easement concepts differ substantially from country to country, and in the U.S. from state to state. Historically, it was limited to the right-of-way and rights over flowing waters, although this is no longer true. Traditionally, it was a right that could only attach to an adjacent land and was for the benefit of all[citation needed], not a specific person; this is also no longer true in many jurisdictions.
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[edit] Classification of easements
[edit] Public easements versus private easements
Easements may be considered public or private. A private easement is limited to specific individuals or entities such as the owner of an adjoining land. A public easement is one that grants the right to a large group of individuals or to the public in general, such as the easement on public streets and highways or of the right to navigate a river. ,
[edit] Appurtenant easements compared to easements in gross
In the U.S., an easement appurtenant is one that benefits the dominant tenement, as compared to an easement in gross that is personal to holder of the easement and does not pass automatically to another person when the easement holder's property is sold and bought.
An easement in gross is one that is attached to an individual person or legal entity rather than a parcel of real estate served by the easement. This easement can be personal (like an easement to use one's boat ramp) or commercial (like an easement given to a railway company to build and maintain a rail line across one's property) in nature. In earlier times, easements in gross were considered neither assignable nor inheritable, but today, most courts hold that commercially oriented easements in fee are freely alienable. This is not true in England and Wales where easements cannot be in gross. See also Profit-a-Prendre.
[edit] Dominant tenement versus servient tenement
Where an easement is appurtenant, it will typically require the existence of two parcels of land, known as tenements. There is the dominant tenement, which is the plot of land to which the benefit an appurtenant easement is attached. Second, there is the servient tenement, which is the plot of land which bears the burden of the easement.
For example, where a driveway is owned by house A, but the owners of house B are permitted to drive over it to gain access to their house, there is an easement of way, with house B the dominant tenement and house A the servient tenement.
[edit] Profits
- Main article: Profit-à-prendre
A profit (or profit a prendre) is a right to take something off another person's land[1]. At common law it was treated differently from an easement, something that is still the case in English law. In other jurisdictions[citation needed] a profit is treated as a special type of easement.
Examples of profits include the right to come onto the property of another and remove, fruits, vegetables, and "fugacious minerals" (minerals that tend to be movable) such as gas or oil; by comparison, coal, which does not move, would not be considered a fugacious mineral. The rights of the profit-holder depend on the nature of the profit.
[edit] Creation of easements
Easements may be created in a number of ways. In most of the United States, using someone else's property, for example, for ingress and egress over a certain number of years, regularly and without the consent of the property owner, can give the user the right to continue using the property for the same purpose for as long as the user wishes. This method of acquiring an easement is called a "prescriptive easement" or "easement by prescription."
In the United States, "prescriptive easement" cannot be used to acquire the right to protect a view over a neighboring property no matter how long a property owner has had a view over the neighbor's property. This concept, known as "ancient lights" in some common law jurisdictions, is not recognized in any U.S. state.
Prescriptive easements can be contrasted with adverse possession, which involves the taking of complete title to land rather than just taking the right to use the property.
[edit] Implied easements versus express easements
An easement may be implied or express. An express easement may be "granted" or "reserved" and is typically included in a document such as a deed or other officially recorded document, or incorporated by reference to a subdivision plan by "dedication", or in restrictive covenants in an owners' association agreement. For example, a "paper street" shown on an approved and recorded subdivision plan, but never improved to become an actual street, creates an express "easement by estoppel" whereby the grantor and abutters of the way cannot later deny the existence of the way or its potential benefits to others in the subdivision (e.g., for an underground drainage line).
[edit] Easement by necessity
Similarly, parcels without access to a public way may have an easement of access over adjacent land, if crossing that land is absolutely necessary to reach the landlocked parcel. There is an implied easement arising from the original subdivision of the land for continuous and obvious use of the adjacent parcel (e.g., for access to a road, or to a source of water). This easement is extinguished upon termination of the necessity (for example, if a new public road is built adjacent to the landlocked tenement). An easement by necessity is distinguished from an easement by implication in that the former easement arises only when "strictly necessary," whereas the latter can arise when "reasonably necessary."
However, the landlocked owner might be required to obtain a license for a new commercial use or to cause damage during access (e.g., a logging road or blazed trails). Some states, also, frown on granting easements by necessity when the need was created by the owner's own actions, say, by selling off plots of land resulting in a landlocked parcel.
Some U.S. state statutes grant a permanent easement of access to any descendant of a person buried in a cemetery on private property.
[edit] Easement by prescription
Easements by prescription, also called prescriptive easements, are implied easements that give the easement holder a right to use another person's property for the purpose the easement holder has used the property for a certain number of years, which varies from state to state. Prescriptive easement doctrine is not the same as adverse possession doctrine, which allows someone to acquire ownership of the title to a property by asserting possession of the property for the legally required period; in some states, additional requirements apply. For example, in California, the adverse possession statute requires the "adverse possessor" to assert possession of the property AND pay all property taxes for at least five years. Prescriptive easements are a type of implied easement, in that they arise even though they are not expressly created or recorded. Unlike other implied easements, however, prescriptive easements are hostile (i.e., without the consent of the true property owner). Prescriptive easements do not convey the title to the property in question, only the right to utilize the property for a particular purpose. They often require less strict requirements of proof than fee simple adverse possession.
Once they become legally binding, easements by prescription hold the same legal weight as written or implied easements. Before they become binding, they hold no legal weight and are broken if the true property owner acts to defend his ownership rights. Easement by prescription is typically found in legal systems based on common law, although other legal systems may also allow easement by prescription.
Laws and regulations vary among local and national governments, but some traits are common to most prescription laws. Generally, the use must be open (i.e. obvious to anyone), actual, continuous (i.e., uninterrupted for the entire required time period), and adverse to the rights of the true property owner. The use also generally must be hostile and notorious (i.e., known to others). Unlike fee simple adverse possession, prescriptive easements typically do not require exclusivity.
The period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws (usually based on the statute of limitations on trespass). Generally, if the true property owner acts to defend his property rights at any time during the required time period the hostile use will end, claims on adverse possession rights are voided, and the continuous use time period resets to zero.
In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal property owner, the prescriptive easement may become a regular or implied easement rather than a prescriptive easement and immediately becomes binding. In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement.
Government owned property held for common use is generally immune from prescriptive easement in most cases, but some other types of government owned property may be subject to prescription in certain instances.
Prescription may also be used to end an existing legal easement. For example, if a servient tenement holder were to erect a fence blocking a legally deeded right-of-way easement, the dominant tenement holder would have to act to defend his easement rights during the statutory period or the easement might cease to have legal force, even though it would remain a deeded document.
Right-of-way for access is among most common easement by prescription.
[edit] Easements taken by the government
In the United States, easements may be acquired by the government using its power of "eminent domain" in a "condemnation" proceeding in the courts. Note that in the U.S., in accordance with the Fifth Amendment to the U.S. Constitution, property cannot simply be taken by the government unless the property owner is compensated for the fair market value of what is taken. This is true whether the government acquires full ownership of the property ("fee title") or a lesser property interest, such as an easement.
[edit] Examples of easements
Easements include:
- Right of light. The right to receive a minimum quantity of light in favour of a window or other aperture in a building which is primarily designed to admit light.
- Aviation easement. The right to use the airspace above a specified altitude for aviation purposes. Also known as avigation easement, where needed for low-altitude spraying of adjacent agricultural property.
- Railroad easement.
- Utility easements including:
- Storm drain easements. These carry rainwater to a river or other body of water.
- Sanitary sewer easements. These carry used water to a sewage treatment plant.
- Electrical power line easements.
- Telephone line easements.
- Fuel gas pipe easements.
- Sidewalk easements. Usually sidewalks are in the public right-of-way, but sometimes they are on the lot.
- Solar easements. Prevents someone from blocking the sunlight.
- View easements. Prevents someone from blocking the view of the easement owner, or permits the owner to cut the blocking vegetation on the land of another.
- Driveway easements, also known as easement of access. Some lots do not border a road, so an easement through another lot must be provided for access. Sometimes adjacent lots have "mutual" driveways that both lot owners share to access garages in the backyard. The houses are so close together that there can only be a single driveway to both backyards. The same can also be the case for walkways to the backyard: the houses are so close together that there is only a single walkway between the houses and the walkway is shared. Even when the walkway is wide enough, easements may exist to allow for access to the roof and other parts of the house close to a lot boundary. To avoid disputes, such easements should be recorded in each property deed.
- Beach access. Some jurisdictions permit residents to access a public lake or beach by crossing adjacent private property. Similarly, there may be a private easement to cross a private lake to reach a remote private property, or an easement to cross private property during high tide to reach remote beach property on foot.
- Dead end easement. Sets aside a path for pedestrians on a dead-end street to access the next public way. Could be contained in covenants of a homeowner association, notes in a subdivision plan, or directly in the deeds of the affected properties.
- Recreational easements. Some U.S. states offer tax incentives to larger landowners if they grant permission to the public to use their undeveloped land for recreational use (not including motorized vehicles). If the landowner posts the land (i.e., "No Trespassing") or prevents the public from using the easement, the tax abatement is revoked and a penalty may be assessed. Recreational easements also include such easements as equestrian, fishing, hunting, hiking, biking and other such uses.
- Conservation easements. Grants rights to a land trust to limit development in order to protect the environment.
- Easement of lateral and subjacent support. Prohibits an adjoining land owner from digging too deep on his lot or in any manner depriving his neighbor of vertical or horizontal support on the latter's structures e.g. buildings, fences, etc.
[edit] Trespass upon easement
Blocking access to someone who has an easement is a trespass upon the right of easement and creates a cause of action for civil suit. For example, putting up a fence across a long-used public path through private property may be a trespass and a court may order the obstacle removed. Turning off the water supply to a downhill neighbor may similarly trespass on the neighbor's water easement.
Open and continuous trespassing upon an easement can lead to the extinguishment of an easement by prescription (see below), if no action is taken to cure the limitation over an extended period.
[edit] Restrictive easement
Restrictive easements are also called "negative easements," as their "use" is normally prohibitive, such as a common "non-vehicular access" easement as shown along a main thoroughfare where the governmental entity needs to restrict access. Therefore a restrictive easement is a condition placed on land by its owner or by government that in some way limits its use, usually regarding the types of structures which may be built there or what may be done with the ground itself. For instance, if a leased piece of land is not precluded by zoning laws (probably because it is not in a township) from having people inhabit it, and the government feels that for some reason living there would be especially unsafe, it may place a restrictive easement on the property stating that no one may live there. Restrictive easements are also frequently placed on wetlands (i.e., a conservation easement) to prevent them from being destroyed by development.
Another type of restrictive easement is an historic preservation easement in which the owner of a historic structure agrees not to change specified historic elements of the facade.
The primary difference between location preservation ordinances and historic preservation easements is that local ordinances are discretionary and can be removed and a historic preservation easement runs with the property forever.
The value of easements imposed on historic properties already protected by local ordinances has recently been the subject of discussion by some people who have claimed that “where the subject property is located in a local historic district in which there are existing restrictions, regulations and controls, the terms of the easement are substantially redundant.”
Easement-encumbered properties within local historic districts should sell at a penalty relative to unencumbered properties in such districts because the easement typically imposes stricter controls than those contained in the usual preservation ordinance.
Easements often prohibit changes in property use or changes to significant architectural features while ordinances may permit such changes, subject to review and approval by a board of architectural review.
Further, unlike preservation ordinances, the easement typically contains no relief for "economic hardship" commonly found in governmental regulation of land use.
Easements are granted in perpetuity while historic district ordinances and local zoning practices change over time to reflect the dynamics of a changing political and/or economic interests of a community. An easement on a historic urban property is generally intended to preserve and conserve the historic, architectural, scenic and cultural values of a certified historic structure.
An easement donation reduces the basis in subsequent years by a fraction equal to the ratio of the value of the easement donation divided by the value of the property just before the easement donation takes place. This Basis Adjustment will cause a reduction from the owner’s depreciation schedule and or increase one’s capital gain upon sale of subject property.
Easements provide for judicial extinguishment in the event the historic structure is destroyed. The proceeds from the extinguishment are prorated at a fraction equal to the ratio of the value of the easement donation divided by the value of the property just before the easement donation takes place, and paid to the easement holding organization (not the landlord).
In the case of properties located in registered historic districts, the easement will also protect the historic district through limitations on uses that might jeopardize the architectural scale, style and sense of cultural identity of the district. The easement does this by restricting alteration and modification of the property in ways that would change its historic appearance or remove or replace historic building fabric. Such an easement typically contains provisions:
1) Prohibiting demolition.
2) Prohibiting or severely limiting subdivision.
3) Prohibiting or limiting further construction or development. Depending upon the property, the easement may also prohibit or limit use changes.
4) Prohibiting changes to exteriors (and on occasion interiors) of historically or architecturally significant buildings depending upon their significance, barring changes to facades visible from public ways or prohibiting changes without prior review by the holding organization.
5) Typically, easements on significant historic buildings will regulate changes to all facades, regulate how historic materials are replaced or repaired, prohibit or regulate placement of commercial or other signs and prohibit changes inconsistent with the building's historic character.
6) Requiring maintenance in conformity with agreed standards, typically those set by the US Department of Interior, to protect the historic structure.
7) Maintenance in excess of that ordinarily anticipated for comparable structures is typically required.
8) The cost of conducting "interruptive maintenance" out of the ordinary building maintenance cycle to correct what, in economic terms, are relatively minor defects (such as repainting or repair of deteriorated brickwork, cornices or window elements more frequently than would be required by market conditions) must be considered.
9) Requiring the owner to keep the property fully insured against casualty loss and to reconstruct improvements if they are destroyed. Again, not all preservation easements require the owner to insure the property or to replace it in the event of casualty.
10) Prohibiting dumping of trash.
11) Allowing for certain rights held by the holding organization, including periodic inspection, review and enforcement rights.
12) On structures within historic districts provide that any replacement structure must be constructed according to design plans approved by the easement holder.
[edit] Torrens title registration
Under the Torrens title registration system of land ownership registration, easements and mortgages are recorded on the titles kept in the central land registration or cadastre. Any unrecorded easement is extinguished and no easement by prescription or implication may be claimed.
[edit] England and Wales
In England and Wales there are four requirements for an easement[2]:
- there must be a dominant and servient tenement
- the easement must confer a benefit (or "accommodate") the dominant tenenement
- the dominant and servient tenements must not be owned and occupied by the same person
- the easement must be capable of forming the subject matter of a grant
Thus an easement is always linked to a specific property and can never be in gross, nor can an easement be for the benefit of the general public. Separate laws, such as the law of public rights of way, or customary rights, governs rights for the public in general.
[edit] Prescription
An easement may be prescribed where the easement has been used as if the owner of the dominant tenement were entitled to it (known technically as "user as of right"). There are now four ways that an easement may be prescribed:
- immemorial user
- long user
- lost modern grant
- under the Prescription Act
There are three conditions for a user as of right to exist, which follows the Roman Law doctrine of nec vi, nec clam, nec precario (without force, without secrecy, without permission).
The question of how far the owner of the servient tenement may prevent prescription by giving a blanket permission to use the easement is uncertain. It was suggested by Warner J Rafique v The Trustees of The Walton Estate (1993) 65 P. & C.R. 356, that the owners of an easement of way could prevent the possibility of the acquisition of prescriptive rights by displaying a notice on the road in question stating that anybody using the road did so "only be permission of the Trustees and that that permission might be withdrawn at any time."
[edit] See also
- right of light
- air rights
- Countryside and Rights of Way Act 2000 (in the UK)
- crown land (see "logging and mineral rights" under Canada)
- fair use, an analogous concept in copyright law
- land rights
- prior appropriation water rights
- right of public access to the wilderness
- riparian water rights
- title (property)
[edit] External links
- http://caselaw.lp.findlaw.com/data/constitution/amendment05/16.html (Legal Cases regarding Real Estate Taking and Easements)
- Easements and servitudes in South Africa
