Understanding Easements in Real Property Law

An easement is a nonpossessory interest in land that grants the holder the right to use another person's property for a specific purpose. Easements are a fundamental concept in real estate law and frequently appear on the NALA CP exam. For paralegals working in real estate or property law, understanding easements is essential for conducting title searches, reviewing surveys, and advising attorneys on property rights issues.

Types of Easements

Easements are classified in several ways based on how they are used and who benefits from them:

Easement appurtenant: Benefits a particular parcel of land (the dominant estate) and burdens an adjacent or nearby parcel (the servient estate). The easement "runs with the land," meaning it transfers automatically when either property is sold. A common example is a driveway easement that allows the owner of a landlocked parcel to cross a neighbor's property to reach a public road.

Easement in gross: Benefits a specific person or entity rather than a parcel of land. There is a servient estate but no dominant estate. Utility easements are the most common example: a power company holds an easement in gross to run electrical lines across private property. Commercial easements in gross are generally transferable, while personal easements in gross typically are not.

Affirmative easement: Grants the holder the right to do something on the servient property, such as cross it, install utilities, or access water.

Negative easement: Restricts the servient property owner from doing something on the property that would otherwise be permitted, such as building a structure that blocks the dominant owner's view or light.

How Easements Are Created

Easements can be created through several legal mechanisms:

Express grant: The property owner executes a written document (typically a deed) creating the easement. This is the most straightforward method and must comply with the Statute of Frauds.

Express reservation: When a property owner sells a portion of the property but reserves an easement over the sold portion for the benefit of the retained land.

Implication: An easement implied from prior use arises when property is divided and one portion was using the other in an apparent, continuous manner that is reasonably necessary for enjoyment of the property.

Necessity: An easement by necessity is created when a parcel is landlocked and has no access to a public road. The easement provides the minimum access needed.

Prescription: Similar to adverse possession, a prescriptive easement is acquired through open, notorious, continuous, hostile, and uninterrupted use of another's property for the statutory period (which varies by state).

Termination of Easements

Easements can be terminated through several means:

Release: The easement holder executes a written release of the easement
Merger: The dominant and servient estates come under common ownership
Abandonment: The easement holder demonstrates a clear intent to permanently abandon the easement, supported by physical acts (mere nonuse is generally insufficient)
Expiration: If the easement was created for a specific duration, it terminates when that period ends
Condemnation: The government takes the servient estate through eminent domain
Estoppel: The easement holder makes statements or takes actions indicating abandonment, and the servient owner reasonably relies on those statements to their detriment

Easements vs. Licenses and Profits

It is important to distinguish easements from similar property interests. A license is a revocable permission to use another's land and does not create a property interest. A profit (or profit a prendre) grants the right to enter another's land and remove resources such as timber, minerals, or fish. A profit includes an implied easement to enter the land.

The Paralegal's Role in Easement Matters

Paralegals frequently encounter easement issues in real estate transactions, boundary disputes, and land use cases. Common tasks include researching recorded easements during title searches, reviewing surveys for easement locations, drafting easement agreements, preparing documents for easement disputes, and analyzing how easements affect property development plans.

Test Your Real Estate Knowledge

Easements are a frequently tested topic on the CP exam. Build your confidence with ParalegalPrep flashcards covering real estate law and property rights. Sign up for free to access study materials, or check out our pricing for premium exam preparation.

Easements and Property Rights: Essential Knowledge for Paralegals