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A Brief Overview of Easements

03.19.2012

Most real estate is subject to one or more easements, especially if the real estate is developed. Easements for utilities, access, encroachments, or for a number of other specific purposes are common. Undeveloped land is also frequently subject to easements. For example, agricultural land may be subject to an oil pipeline easement, or a sanitary sewer easement benefiting an adjacent residential development, or an easement for overhead power lines.

Easements constitute interests in real property and are defined and governed by state law. As such, the legal characteristics of easements may vary according to different state laws. This article was written with Nebraska law in mind, although under most state laws, the essential elements of easements are similar.

To better understand what an easement is (and isn’t) we’ve provided the following glossary:

Easement: An easement is an interest in land that permits the use of another’s land for a specified purpose, or restricts the use of such land in one or more respects.

Appurtenant Easement: An appurtenant easement is a right in the land of another that is created for the use and benefit of another parcel of land. An appurtenant easement is usually recorded in the real estate records and “runs with the land,” i.e., it continues in favor of future owners of the land. An example of an appurtenant easement is an easement given by a project developer to individual lot owners within the project over private streets and sidewalks within the project. This easement right will continue to benefit future owners of the individual lots.

Easement in Gross: An easement in gross is an easement that is not created to benefit any particular parcel of land, but is created to benefit a specific user. An example is an easement given to a utility company to string overhead power lines across your land. Easements in gross burden the land on which the easement exists, but do not benefit any other specific parcel of land.

Dominant Estate: The dominant estate, with respect to an appurtenant easement, is the parcel of land benefitted by the easement. For example, if your neighbor accesses his land by crossing a road located on your land via an easement that you or your predecessor in title granted, your neighbor’s land is the dominant estate. Easements in gross do not have a dominant estate, only a servient estate.

Servient Estate: The servient estate is the parcel of land burdened by the easement. In the example immediately preceding, your land would be the servient estate. As the servient estate owner, you can otherwise enjoy the full use of your land, provided you do not take any action that would impede the dominant estate owner from enjoying the benefits of the easement. In this example, you could not erect a structure on the road, remove the road, or take action to otherwise prevent your neighbor from using the road.

Affirmative Easement: An affirmative easement is for a particular purpose and allows the holder of the easement to enter upon the servient estate to exercise the easement right (e.g., a driveway or utility easement).

Negative Easement: A negative easement prevents the owner of the servient estate from doing certain acts on its property (e.g., an owner may grant an easement for light or air, or scenic view, to an adjoining owner, wherein the owner of the servient estate agrees not to construct any structure on the servient estate in excess of a specified height).

Easements may be temporary or permanent. An example of a temporary easement would be a temporary construction easement given in connection with the grant of a permanent sewer easement, allowing the easement holder access to and use of additional area on the servient estate to construct and install the sewer line. An example of a permanent easement would be an easement for ingress or egress to an otherwise landlocked parcel of land.

Most easements are negotiated between the parties, and frequently the subject of a purchase and sale agreement. Easements may also be created by reservation, such as when the seller of property includes in the conveyance deed a reserved easement to cross the sold property to access adjacent property retained by the seller. Easements are commonly created in plats of property, and in declarations filed by owners or developers of property, wherein the plat or declaration may include utility easements, access or roadway easements or other easements. Easements may arise by implication or necessity. If you sell a landlocked parcel of property, and the buyer’s only access to and from that property is to cross the road on your adjoining property, then, if no specific easement is otherwise granted, the buyer will have an easement by necessity. A classic example giving rise to an easement by implication is where one party owned two adjoining lots and constructed a residence that encroaches over the common lot line between the lots, then some years later sells both lots to two different buyers. The only way for the owner of the residence to enjoy her lot is if she has the continued right for the residence to encroach over the common lot line.

An easement can be acquired by prescription, or adverse possession, such as by the continuous use of a road across another’s property, under a claim of right, for a period of more than ten (10) years (under Nebraska law). Such use may ripen into a prescriptive easement that gives the holder continued use of the road. Easements can also be acquired by condemnation, such as when a Sanitary and Improvement District or a utility company condemns a permanent easement for sanitary sewer purposes.

Termination of an easement usually occurs according to the terms of the written easement agreement, if applicable, such as when the easement is specified to last for a certain period of time, or for a certain temporary purpose. Easements can also be voluntarily released by the owner of the easement, and under certain circumstances can be abandoned.

Easements create interests in real property that may last in perpetuity. Accordingly, properly documenting the terms and conditions of the easement, the relative rights and responsibilities of the parties, and including, whenever possible, a surveyed legal description showing the exact location of the easement, can help avoid or minimize problems later. If you have any questions or would like further information, please contact one of the members of Koley Jessen’s Real Estate, Environmental and Natural Resources Law Group.

by Max J. Burbach

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