An easement refers to the privilege of utilizing someone else’s real property. In the past, it was primarily associated with the right of passage and access to water bodies. Traditionally, it was a right that could only be granted to adjacent landowners and was intended for the benefit of all, rather than a specific individual. This right is often defined as the ability to utilize another person’s land for a specific purpose. It should be noted that an easement differs from a license, which grants a personal privilege to perform certain activities on someone else’s land, typically involving permission to cross the property without trespassing. Generally, an easement involves two types of land, known as tenements.
The dominant tenement refers to the land that benefits from an appurtenant easement, while the subservient tenement is the land that bears the burden. Easements can be categorized as either public or private, with private easements being restricted to specific individuals, like the owner of adjacent land.
A public easement refers to the granting of rights to a large group of individuals or the general public, this includes rights on public streets, highways, or the right to navigate a river. On the other hand, an appurtenant easement is specific to the landowner who benefits from it, unlike others (known as easements in gross) that do not require ownership to access the use. Easements can be either implied or expressed. An expressed is typically documented in a deed, officially recorded grant, or referenced in a subdivision plan or restrictive covenants within an association agreement. Essentially, this allows for the use of someone else’s property without actual possession of it.
Easements serve as a valuable means to establish pathways between multiple properties or grant individuals the right to fish in privately owned ponds. Under common law, it is recognized as a distinct property right and continues to be regarded as such in most jurisdictions. However, the specific rights granted to a holder can differ significantly depending on the jurisdiction. Historically, common law courts would only enforce four types of easements: right of way, easements of support, light and air, and rights related to artificial waterways.
Contemporary courts acknowledge a wider range of easements, yet these fundamental categories continue to underpin easement law.
Positive and Negative Easement:
An affirmative easement grants the privilege of utilizing someone else’s property for a particular purpose, whereas a negative one imposes a limitation on the right to prohibit an otherwise lawful activity on someone else’s property. For instance, an affirmative easement could enable landowner A to traverse land belonging to B with their cattle. In this case, A possesses an affirmative easement from B. Conversely, a negative easement could restrict B from obstructing A’s scenic mountain view by erecting a barrier of trees. Here, A holds a negative easement from B.
Dominant and Servient Estate:
In an easement agreement, the idea of dominant and servient estate is shared by two parties. The dominant estate or dominant tenement is the party that benefits from the easement, whereas the servient estate or servient tenement is the party that bears the duties. The dominant estate is entitled to specified benefits, whilst the servient estate is required to accept certain obligations or constraints. For example, if the owner of parcel A has an easement to use a driveway on parcel B to access their home, parcel A is the dominant estate that benefits from the easement, while parcel B is the servient estate that grants the easement or bears the burden.
Public and Private Easement:
This is maintained by private individuals or entities, while a public easement authorizes access for public use, such as allowing the general public to traverse a property owned by an individual.
Appurtenant and Gross in Easement:
In the United States, this refers to a type that provides advantages to the dominant estate and remains attached to the land. It means that when the dominant estate is transferred, this is typically transfers automatically as well. On the other hand, an easement in gross benefits an individual or a legal entity instead of a dominant estate. It can be utilized for personal purposes, such as accessing a boat ramp, or for commercial purposes, such as granting a railway company the right to construct and maintain a rail line across a property.
Floating Easement:
This is present when there is no predetermined position, course, approach, or restriction to the right of way. For instance, a right of way might traverse a field without any discernible trail or permit access through another structure for fire safety. It can either be public or private, appurtenant or gross.
Express Easement:
This can be granted or reserved in a deed or another legal document. Alternatively, it can be included by referring to a subdivision plan through dedication or in a restrictive covenant within the agreement of an owner’s association.
Implied Easement:
This type is determined by courts, it is more intricate and is established based on the property’s usage and the original parties’ intentions. Unlike recorded or explicitly stated easements, the implied are not documented but rather reflect the customary practices and usage of a property.
Easement by Necessity:
The mere presence of necessity does not automatically warrant the establishment of an easement. In situations where a piece of land lacks access to a public way, access over neighbouring land may be granted if it is crucial to reach the landlocked parcel and there was an initial intention to provide access, even if the grant was not finalized or recorded. A court order is necessary to confirm the existence of an easement by necessity, typically, the party seeking it initiates legal proceedings, and the judge weighs the potential harm of enforcing it on the servient estate against the harm to the dominant estate if the easement is not recognized and the land remains landlocked. As this approach involves imposing a burden on one party for the benefit of another, the court examines the original circumstances to determine the equitable distribution of benefits and burdens between the properties. This court-established easement is automatically terminated once the necessity no longer exists, such as when a new public road is constructed nearby or another easement is obtained without considering the practicality or convenience compared to the existing one.
Example
Mr. A possesses two parcels of land. The first parcel is conveniently situated adjacent to a public street, while the second parcel is completely landlocked behind it. Mr. A’s driveway commences from the public street, traverses the first parcel, and extends onto the second parcel, leading to his residence. Subsequently, Mr. A decides to sell off the first parcel; however, he inadvertently neglects to include a provision for a driveway easement in the deed.