An easement gives others the right to use someone’s land including the airspace above it. An easement is a right benefiting one piece of land (known as the dominant tenement) that permits the rightful users of that land to perform specified actions on or over an adjacent piece of land (known as the servient tenement). There are two main types of easements:
1. Easements in Gross
Easements in Gross – This type of easement does not belong to the land itself but is held by another individual, corporation, or business. In most situations these easements belong to utility companies, giving them the right to access land or to place power lines, gas lines, telephone, or sewage pipes onto the property. The easement gives the utility company an affirmative grant to access and use the property. Rights pertaining to easements in gross, cannot be sold or transferred.
2. Appurtenant Easements
This type of easement is basically defined as a right or privilege to use property. It follows that when two properties with different owners are adjacent to each other, and one owner has rights to use the property of the other, an appurtenant easement exists. An easement to place a bridge over a canal to a public road through the property of another is a typical example of an appurtenant easement. These types of easements do belong to the land on which they pertain and are therefore transferable when such properties change hands.
Creation of Easements
Easements can be established in several ways. Six of the most commons means for creating them are identified below:
A government entity can use eminent domain to acquire property for public use. As you learned previously, the owner of the property must receive financial compensation for the use of the property, including compensation for any loss of market value that may result because of the easement.
2. Express grant
A deed that includes the easement is given by the owner of the property over which the easement will run.
3. Express reservation
A grantor reserves an easement right over the property.
Created by law, necessity easements allow property owners access to their land.
If the property is used without authorization and complies with certain requirements defined by state law, it will create an easement by prescription. Walking on a well-established footpath for many years is often recognized as an easement. However, driving motor vehicles across common land does not create an easement or any form of private right of way. Instead, doing so is considered trespassing and is, therefore, prosecutable by law.
6. Written agreement
Two or more parties sign an agreement on how the property will be used.