Easement
An easement is a nonpossessory right to use or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a property right and type of incorporeal property in itself at common law in most jurisdictions.
An easement is similar to real covenants and equitable servitudes. In the United States, the Restatement of Property takes steps to merge these concepts as servitudes.
Easements are helpful for providing a 'limited right to use another person's land for a stated purpose. For example, an easement may allow someone to use a road on their neighbor’s land to get to their own.' Another example is someone's right to fish in a privately owned pond, or to have access to a public beach.
The rights of an easement holder vary substantially among jurisdictions.
Types
Historically, common law courts would enforce only four types of easements:- Easements of way
- Easements of support
- Easements of "light and air"
- Rights pertaining to artificial waterways
Affirmative or negative
An affirmative easement is the right to use another property for a specific purpose while a negative easement is the right to prevent another from performing an otherwise lawful activity on their own property. For example, an affirmative easement might allow land owner A to drive their cattle over the land of B. A has an affirmative easement from B. Conversely, a negative easement might restrict land owner A from putting up a wall of trees that would block the adjacent land owner B's mountain view. A is subject to a negative easement from B.Dominant or servient estate
As defined by Evershed MR in Re Ellenborough Park Ch 131, an easement requires the existence of at least two pieces of land. The land with the benefit of the easement is the dominant estate or dominant tenement, while the land burdened by the easement is the servient estate or servient tenement. For example, the owner of parcel A holds an easement to use a driveway on parcel B to gain access to A's house. Here, parcel A is the dominant estate, receiving the benefit, and parcel B is the servient estate, granting the benefit or suffering the burden.Public or private
A private easement is held by private individuals or entities. A public easement grants an easement to the public, for example, to allow public access over a parcel owned by an individual.''Appurtenant'' or ''in gross''
In the US, an easement appurtenant is one that benefits the dominant estate and "runs with the land" and so generally transfers automatically when the dominant estate is transferred. An appurtenant easement allows property owners to access land that is only accessible through a neighbor's land.Conversely, an easement [|in gross] benefits an individual or a legal entity, rather than a dominant estate. The easement can be for a personal use or a commercial use. Historically, an easement in gross was neither assignable nor inheritable, but commercial easements are now freely transferable to a third party. They are divisible but must be exclusive and all holders of the easement must agree to divide. If subdivided, each subdivided parcel enjoys the easement.
Floating
A floating easement exists when there is no fixed location, route, method, or limit to the right of way. For example, a right of way may cross a field, without any visible path, or allow egress through another building for fire safety purposes. A floating easement may be public or private, appurtenant or in gross. One case defined it as " easement defined in general terms, without a definite location or description, is called a floating or roving easement".Furthermore, "a floating easement becomes fixed after construction and cannot thereafter be changed".
Wayleave
In general, a wayleave is a right to access or cross the land of another for some purpose. Frequently nowadays in British energy law and real property law, a wayleave is a type of easement, appurtenant to land or in gross, used by a utility that allows a linesman to enter the premises, "to install and retain their cabling or piping across private land in return for annual payments to the landowner". Like a license or profit-à-prendre, a "wayleave is normally a temporary arrangement and does not automatically transfer to a new owner or occupier". More generally, a wayleave agreement can be used for the infrastructure needs of any service provider, such as a telecommunications network, electricity grid or gas pipeline. In mining law, a wayleave is a right to cross a neighbour's land e.g. in order to convey a mineral to a seaport, and might include the right to run a private railway, payment depending on the tonnage conveyed. Variants of the concept included waterleaves or airleaves.In the United States, an easement in gross is used for such needs, especially for permanent rights.
Access
An access easement can provide access from public land, road or path or a public right of way to a parcel of land. For example, if Zach and James own neighboring parcels of land, Zach's parcel may have easement rights to cross James's parcel from public land, road or path or a public right of way. In such a case, Zach's "dominant" parcel would contain an access easement to cross James's "servient" parcel.Creation
An easement may be implied, express or created in other ways.Express
Easements are most often created by express language in binding documents. Under most circumstances, having a conversation with another party is not sufficient. Parties generally grant an easement to another, or reserve an easement for themselves on disposition of land. An express easement may be "granted" or "reserved" in a deed or other legal instrument. Alternatively, it may be created by reference to a subdivision plan by "dedication" or in a restrictive covenant in the agreement of an owners association. Generally, the doctrines of contract law are central to disputes regarding express easements.Implied
Implied easements are more complex and are determined by the courts based on the use of a property and the intention of the original parties, who can be private or public/government entities. Implied easements are not recorded or explicitly stated until a court decides a dispute, but reflect the practices and customs of use for a property. Courts typically refer to the intent of the parties, as well as prior use, to determine the existence of an implied easement. Disputes regarding implied easements usually apply the principles of property law.A government authority or private service provider may acquire an implied easement over private land by virtue of the public service it performs. For example, a local authority may have the responsibility of installing and maintaining the sewage system in an urban area. Merely by the fact that it has that responsibility, usually enshrined in some statute or local laws, may give the authority the right, by virtue of an implied easement, to enter private property to carry out installation and maintenance. The location of the easement will not usually be described precisely, but its general position will be defined by the service route. Power and water lines may also have implied easements linked to them, but drainage and stormwater systems are commonly precisely defined in location and recorded in the title documents for private land.
By necessity
Necessity alone is an insufficient claim to create any easement. Parcels without access to a public way may have an easement of access over adjacent land if crossing that land is absolutely necessary to reach the landlocked parcel and there has been some original intent to provide the lot with access, and the grant was never completed or recorded but is thought to exist. A court order is necessary to determine the existence of an easement by necessity. To obtain this generally the party which claims the easement files a lawsuit, and the judge weighs the relative damage caused by enforcing an easement against the servient estate against the damage to the dominant estate if the easement is found not to exist and is thus landlocked.Because this method of creating an easement requires imposing a burden upon another party for the benefit of the landlocked owner, the court looks to the original circumstances in weighing the relative apportionment of benefit and burden to both lots in making its equitable determination whether such easement shall be created by the court. This method of creating an easement, being an active creation by a court of an otherwise non-existent right, may be automatically extinguished upon termination of the necessity.
There is also an unwritten form of easement referred to as an implied easement or easement by implication, arising from the original subdivision of the land for continuous and obvious use of the adjacent parcel such as the right of lot owners in a subdivision to use the roadway on the approved subdivision plan without requiring a specific grant of easement to each new lot when first conveyed. An easement by necessity is distinguished from an easement by implication in that the easement by necessity arises only when "strictly necessary", whereas the easement by implication can arise when "reasonably necessary". Easement by necessity is a higher standard by which to imply an easement.
In India, easement of necessity could be claimed only in such cases where transfer, bequeathment or partition necessitates such claim.
As an example, some U.S. state statutes grant a permanent easement of access to any descendant of a person buried in a cemetery on private property.
In some states, such as New York, this type of easement is called an easement of necessity.