In real estate, an easement is the right for another party to enter (or sometimes exit) someone else’s property. Real estate rights include the right to peaceful enjoyment but when an easement is in place, it can be an exception.
There are different types of easements which are defined by how and who is using them.
To understand how easements can impact property rights, let’s take a look at the five main types of easements.
First up is an appurtenant easement
An appurtenant easement benefits a neighboring property owner. These easements are attached to a property, therefore they ‘run with the land’, meaning that if the benefiting property is sold, then new owner will also have a right to the easement.
Next is an easement in gross.
Unlike an appurtenant easement, an easement in gross benefits a person, not a property. A common easement in gross is a utility line that is connected from a home to a main source. The underground piping requires an easement in gross.
Next we have an easement by necessity, which is granted by a court order.
To give you an example of when a court find this necessary, let’s take a look at an example.
Imagine if party A sold a piece of their property to party B, however that parcel is ‘landlocked’ by the remainder of party A’s property with no access to a public road. A court can order than an easement be put in place so that party B can access their property.
Easements by prescription are also granted by court order and require the persistent, open, notorious access to a property by another party owner.
If an owner A knows that B is regularly accessing their property – let’s say to go fishing in A’s pond – then one day, A decides he no longer wants B on his property and tells him so. B says, ‘sorry but I have an easement by prescription, so I have a right to come onto your property.’ The pair takes the matter court, and the court agrees with B, and he now has an easement by prescription.
It is important to note that B’s use of A’s property was persistent, open (meaning he didn’t hide it), and notorious. For an easement by prescription to be granted, it needs to be through a court order as the result of a lawsuit.
The last type of easement is unique to certain property types. Party walls are shared walls between two side by side homes.
Think of a townhouse situation, each neighbor owns their half of the party wall. You could also think of it this easement as a shared fence or driveway. When these homes are built, agreements are put in place to deal with maintenance.
Party wall easements fall under an appurtenance easement because they benefit the adjacent owner and run with the land.
So, here’s a question: Can easements be terminated?
Sure, an easement doesn’t necessarily exist indefinitely. There are four reasons that an easement can end.
Firstly, is by agreement or release. A person who has an easement on another party’s property can agree to release it to the owner of the property.
The second way is by merger. If individual A has an appurtenant easement to cross over individual B’s property, but B purchase’s A’s land, then the easement is terminated by merger.
The third way an easement can be ended is by abandonment. As they say, use it or lose it. If an easement isn’t used, eventually it will be considered abandoned.
Lastly, an easement can be terminated if it is no longer needed.
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