What Are The Requirements Of A Legal Easement?
A legal easement may be created in a variety of ways, but it must result in the landowner’s giving up some right or interest in his or her property to another person; and it must be for a public or other lawful purpose.
The statutory requirements for an easement are:
- An intent by the parties that they want an easement;
- The granting of some interest in land; and
- The acceptance and agreement of that grant by the owner of the servient tenement the land over which someone else has access
- Transfer of land-title by the owner of the servient tenement.
- Prescription- The right acquired by the easement must be held for a certain time period.
- Grant by necessity- In some cases, an easement may be created when it is necessary for the owner of property to have access to another parcel of land to complete a structure.
- Easements may also be created by implication where there is no express grant or denial of access or right-of-way, but rather the implied grant or denial is implied so that reasonable use may be made of the property.
Does An Easement Mean Ownership?
No. A right of way easement is the right to go or use something. It is not ownership or possession. An easement does not constitute ownership of a portion of land, but only grants use.
For example, if you own the land that you live on and you plant a row of bushes along the edge of your yard, then you maintain those bushes, you own the bushes but not the right of way to walk through them.
Just as someone else can own an easement for a footpath over your yard and ensure that path is maintained, you cannot control what happens to your bushes.
A servient owner may not interfere with a dominant estate’s use of an easement, except in the case where the dominant land is being used for illegal activities or some other type of nuisance.
In such instances, a court may order the cessation of that activity or the remedy to the nuisance; otherwise, the easement remains; but the servient owner is not legally required to participate in the easement.
How Do I Write An Easement Agreement?
An easement agreement is the writing in which an easement is granted.
An easement agreement should include the following elements:
- The parties’ names, addresses and telephone numbers;
- The date-the date the agreement is signed and executed;
- A description of the easement and its intended use, in language that is clear, certain and unambiguous;
- The location of the easement area
- The duration and extent of the easement e.g. how long it will last and what area of land is included
- How to renew or terminate the easement.
- How the easement may be used: Rights, limitations or conditions on use;
- The method by which the servient owner will receive use of his or her land;
- Any other terms necessary to implement the easement
- A description of any special equipment used for the easement i.e. a track for an electric car and a list of any special covenants in that equipment.
What Is The Easement For Power Lines?
An easement is a legal right to utilize the land of another for a certain purpose. Most easements are for utility lines, such as water, electricity, or sewage.
A power line easement grants the utility provider permission to install and maintain power lines on your land. Easements are formed by agreement between the landowner and the utility provider or by court order.
The agreement or court order will establish the easement’s parameters, such as the width of the easement strip, the permitted activities inside the easement, and the easement’s lifetime. The easement grants the utility provider certain privileges, but does not affect your property rights.
It also gives the owner of the servient tenement the land over which someone else has access the right to use that area for ingress and egress if it is necessary to carry out repairs on the power lines. A servient owner may, however, use that area to destroy the easement.
This right generally exists without any other notice to the servient owner. This area is considered part of the easement and is not necessary for maintenance and repair of the power line.
Can You Sue For An Easement?
A landowner adversely affected by an easement has the option of bringing legal action in the United States to have the easement extinguished.
These suits are known as takings cases and are claims that government interference with private property rights is so great that a lawsuit for inverse condemnation is justified.
For a taking to occur, however, the owner must prove that his or her property rights have been infringed upon by governmental action. There is no automatic easement created by adverse use of another’s property.
If the court finds the easement just, it will alter or remove it and order monetary damages. In many easement cases, the property owner is awarded damages in an amount equal to the value of profits plus reasonable compensation for use of land and loss of rental value.
How Does A Drainage Easement Work?
According to the easement’s definition, an easement for drainage purposes is an agreement in which a landowner gives another party permission to place land drains or ditches on his or her property and drain water off the land into a public waterway.
A drainage easement is created by written agreement, deed or other form of legal instrument.
The easement must be for a public purpose, such as draining water from public lands into the public waterways; otherwise the easement is considered a common law easement, which is not recognized by government and private organizations.
When you sign an agreement for a drainage easement, you agree that your land will be used in some way to create a wetland habitat or provide public benefits. This means that you give up your right to protect the land from drainage.
What Is An Example Of Easement By Necessity?
When a parcel of land is adjoined on several sides by other properties, an easement by necessity may be created. An easement by necessity is created when there are no other means of access from one property to the other.
This type of easement is implied and not written into a deed or legal document. However, it can be enforced in court if needed.
Easements are usually granted for certain types of uses of private property, such as to provide access for a public facility, an easement for drainage, or access to the railroad tracks on a property boundary.
The easement is usually used for some sort of public use; for example, granting an easement by necessity permits the public’s access to the land from the adjacent property owners.
A legal presumption is made when a property, landlocked on all sides, does not have access to any other exits or entrances, that there was in fact an implied easement by necessity.
How Do I Calculate Easement Compensation?
Easement payment is either based on a flat-rate of land value or a percentage of the sale value of the property that is subject to the easement.
This amount will vary depending on what state you live in and what type of easement you have.
The easement payment is usually stated as either a lump sum or an annual fee.
There are three ways to calculate the amount due in compensation:
- The landowner of the servient tenement the land over which someone else has access can go to court and ask for compensation for the use of the easement.
- The servient owner may receive compensation from the dominant owner in the form of additional rent, reduced current use or a fee for services.
- The easement payment is included in market value or purchase price of property, to be paid by whichever party carries out the proposed sale.
What Are The Rights Of An Easement Holder?
The holder of an easement has exclusive use and enjoyment of the easement area.
In addition, the easement holder may exclude others from using the land or access to it.
The holder also has the right to make repairs in the event that something is damaged. In addition, a landowner can make changes to his or her land as long as they do not interfere with the access granted by an easement.
The holder of the easement has the right to enter the servient tenement at all reasonable times, to inspect the property and to make repairs where necessary, such as digging up part of a lawn.
A servient owner must leave a path wide enough for access by the dominant owner and repair any damage caused by an easement, unless he or she does not cause it. Easements can be appurtenant, in which case they have to be used for specified purposes, or in gross, which means they can only be used for a more general purpose.
The right of an easement holder is generally limited to use of the property and not ownership; however, it can also be applied to restrictions on construction or additions.
Who Pays To Maintain An Easement?
The easement holder can maintain and repair his or her property, but is responsible to the servient owner for any damage caused by an easement.
In some states, the dominant landowner must maintain an easement, keeping the path clear and repair any damage. These rights are often included in a written clause usually included in a deed that indicates how the servient owner will be compensated for his or her use of the easement.
In some cases, however, repairs must be made by both parties; otherwise the easement holder will be responsible to the servient owner for damages.
For example, a divider wall might be shared and repaired by both parties.
In addition, the servient owner is allowed to enter the dominant owner’s property as many times as necessary to maintain the easement.