Easements are created to give a person or organization a use over that of a private property for a specific purpose. This purpose may or may not benefit the owner of the easement, but could be crucial to a certain function. Easements can be created through a few different means, such as: express grant, implication, prescription, and necessity. Basically, easements can be created with the permission and consent of the owner, or there can be a simple implication for the need of an easement to enjoy the full use of a property. An easement can be prescribed with the use of the land without the permission of the owner, if continued for a certain duration without interruption, or can simply be granted due to the need of a land owner to access a public street.
An easement created by express grants deals with the permission and consent of the owner of the property where the easement would be located. This type of easement can be granted by the owner of that real property, generally known as the grantor. This person is also referred to as a servient tenement in an appurtenant easement. The grantee would be the person that holds the easement, who is identified as the dominant tenement. The dominant tenement can transfer an easement when a change in ownership occurs if they should choose to sell their land. This is not always the case for the servient tenement. An easement by express grant must be signed by both tenements, as well as witnessed. Once completed, it must be notarized and it is put into effect, as well as recorded in public records.
Implied easements occur within the transfer of a property and are created by implication. This deals with an acquirement of land that requires an easement through the adjacent land owner and it is clear that one should exist when the sale of that land occurred. There is an implication that an easement belongs, and one is created through the actions of the owners of both pieces of property. The implied easements would exist pending that the person who sold the land was the owner of the real property on which an easement was existing or necessary to do so. This can be in the case if a person sells two pieces of land side by side, one on the main road, the other blocked off. If the owner sells the blocked lot, and keeps the other, there is an implied easement that the neighbor would now need to travel across his remaining property to access that road.
When a piece of land is used by a person other than the owner, apparent to the owner, that may constitute for a prescriptive easements. The periods of time vary from state to state, but a common one is generally ten years. The person using the land must be using it for a evident purpose, as well as make it known to the land owner that they are using the land, giving that owner a chance to stop them from doing so.
Also, that person using the land, must continue the use for the period of time without any rest time in between the duration of the state’s required time period. If the owner of the land halts the use by the neighbor due to verbal notice or even posting a fence, then a prescriptive easement will not be created. However, if the owner of that property does not commit any action to interrupt the use by the neighbor for the duration of time that the state has set for prescriptive easements, then that easement will be granted over the land in favor of the person using it. The owner must be completely clear as to the knowledge of the person using the land, meaning it cannot happen without their visual recognition and confirmation as well as during hours where the owner is known to be unavailable.
An easement that is necessary for the complete use and enjoyment over a piece of land by an owner, is known as an easement by necessity. Such an easement can occur in a right of way situation, where a neighbor needs to access a public street by crossing over the neighbor’s property that is impeding them from doing so. In this case, since the access is essential to that person being able to reach their property from the street as well as the street from their property as an exit route, this would indicate the need for an easement by necessity. Each state has different requirements that it entails for a property quality for this type of easement.
These requirements can also deal with the size of the easement onto the property owner’s land, as to much it would occupy. For example, if the easement is in the form of a walkway or driveway to provide access to a street, then the width of that passage way would be regulated. This gives a sense of control to the land owner from the neighbor abusing their right to an easement and building over the required amount on their property. Easements by necessity are usually called quasi-private, due to the access they provide over the owner’s property where they are located.
Termination When an easement is created, it continues its life until it is terminated, in one of the myriad ways it can be.
These means for termination are the following: expiration of express term, abandonment of easement, merger (land), foreclosure (servient liens or tax foreclosure in some states), or an express release (termination). Easements through express grant may have a certain duration of time specified in the easement by the land owner where the easement is located. This can deal with their life, or the life of their estate, as well as regards to transfer of land. With the expiration of that term from when the easement was granted, the easement can terminate.
Also, when a person using an easement abandons it due to lack of use, or clear abandonment such as removing any fixtures or structures, an easement can be terminated due to its current, clearly non existent need . An easement can also be terminated in the case where the owner of the easement purchases the land on which the easement he has been granted exists.
Since he has purchased the land where the easement was located, there is no need for an easement on his own property. A foreclosure over a servient property, or the sale of a land due to tax foreclosure can also constitute for a termination of easements. Now, just like an easement can be created through express grant, it can also be terminated due to express release. This would entitle both parties to similarly sign a contract to terminate the easement, through the same measures and store it in public records where the easement existed.