Monday, July 6, 2009

Real Estate Law 101 -- Easements



An easement is a common mechanism used in real estate law. An easement is the right to use or to control activities on the property of another. By definition, you cannot hold an easement on your own land. A typical example of an easement would be the easements provided to utility companies.


A "servient tenement" is the land that is subject to the easement. A "dominant tenement" is the land that is benefitted by the easement. The owner of the servient tenement has full use to the land to the extent that the use is not inconsistent with the easement owner's reasonable enjoyment of the easement.


There are 2 types of easements; "appurtenant easements" and in "gross easements". Appurtenant easements run with the land and whomever owns the land that controls the dominant tenement benefits from the easement. An example of this might be a landlocked owner's easement right to cross adjoining land in order to access the street. Should that owner transfer his or her parcel of land, the ingress and egress easement across the adjoining property would transfer with the parcel of land.


In gross easements do not run with the land, with ownership of the easement being independent of ownership of any parcel of land. An example would be utility easements controlled by utility companies.


Easements are presumed to be perpetual unless there is specific language in the grant of the easement that indicates otherwise. How an easement is worded is crucial as language and intent will govern. If a court become involved in an action to enforce an easement, it will not look beyond the wording in document granting the easement unless it finds the language to be ambiguous.


The easement owner has a duty to maintain its easement. If there is an express agreement relating to maintenance regarding an easement, the courts will enforce it.


When negotiating an easement agreement, the parties need to carefully consider the wording of the easement to clearly state the intent, what it covers (e.g., including a sufficiently accurate description so a surveyor can locate it on a survey), address whether it is an exclusive easement or not, and address any other duties or restrictions necessarily related to the easement..



Thanks to Scott Wick, summer associate at Kohrman Jackson & Krantz for his assistance in the preparation of this post.

4 comments:

Kyle Neely said...

Thanks for the information Investors and Home Owners should make it a priority to brush up on Real Estate Law.

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