What Is an Easement in Real Estate? Definition and Examples

An easement is a nonpossessory property right that allows one entity to use another person’s property for a specific use. Once granted, an easement becomes the legal right of the easement holder to have access to the property for a particular purpose and time as defined by state law.

In easement agreements, the “dominant estate” benefits from the easement and the “servient estate” must give up a portion of their land to comply with the easement terms. Easements may be placed on a piece of property to access another piece of property or to allow utility companies the ability to work on a property.

There are a few different types of easements, though each depends on the specifics of your easement agreement. Here is a breakdown of how you can categorize different easements, many of which may overlap:

1. 1. Affirmative easements: Affirmative easements are agreements that provide an easement holder with additional permissions to a piece of land, like granting them permission to fish in their neighbor’s lake or cross over their property.
2. 2. Easement appurtenant: An easement appurtenant is a right that is attached to a specific piece of property. Landowners have a legal right to ingress and egress their property, which another entity cannot inhibit. An example would be a driveway easement in which Neighbor A’s home is located behind Neighbor B’s property, making Neighbor B’s driveway the only means of access that Neighbor A has to their legally owned home. The easement appurtenant would stipulate that Neighbor A has permission to use Neighbor B’s driveway to access their home, which would also extend to any new owners who purchase Neighbor A’s property after them because the easement applies to the property, not the owners.
3. 3. Easements by necessity: Easements by necessity are granted in situations like private land blocking the only access to a public road or area. These easements are granted out of necessity rather than prior use and are often provided through a court order.
4. 4. Easements in gross: Easements in gross are rights that benefit the individual or company holding the easement, not the property itself. This type of easement is nontransferable and is only valid as long as the property owner or easement holder is alive. A utility easement is an example of an easement in gross. Utility companies may need access to private land to install, repair, or maintain public utility structures, which is the utility company’s or customer’s right rather than the land itself.
5. 5. Express easements: Express easements are written agreements between landowners and individuals seeking to use part of their land. Specific rights depend on the terms of the agreement, and the property owner can use their land as they see fit as long as it does not interfere with the granted rights of the dominant estate.
6. 6. Implied easements: Implied easements imply land use rights for particular entities. For instance, stormwater drain maintenance companies have implied access to the designated piece of land for whatever upkeep and repairs are necessary. Implied easements can also apply to property that has been changed or divided. Despite the altered condition of the property, the easement holder’s use remains the same through implied, existing use.
7. 7. Negative easements: Negative easements limit a property owner’s use of their land for the benefit of the easement holder. For instance, an easement may prevent a landowner from building structures obstructing their neighbors’ view or blocking an electric company’s power lines.
8. 8. Private easements: Private easement agreements are negotiated between two private property owners to mitigate personal property concerns, such as running sewer lines under their neighbor’s property or installing solar panels that may obstruct another person’s view.
9. 9. Public easements: Public easements allow the residents of an area to use a limited section of a person’s property; for example, right-of-way access to main roads or a public beach that would be otherwise inaccessible. Property or homeowners may not obstruct the public’s fair access to non-privately owned areas under the terms of a public easement.
10. 10. Prescriptive easements: Prescriptive easements can be either gross or appurtenant, but they typically arise based on incidence rather than an official agreement. These easements are often referred to as adverse possession and usually happen when one person begins using another person’s property frequently for a particular purpose without permission. If the property owner doesn’t object to the person’s use of their property, they are providing consent to that use.

You can do a title search on your property or check a property deed to see if your property has an easement on it. Additionally, you can call your utility companies to check if they have any easements on your property. Certain easements may be a matter of public record, but other easements, such as implied easements, may not have documentation.

Easements can impact the value or marketability of a property, though it ultimately depends on the specifics of the agreement. If easements are exceptionally strict or severely limit the use of the land by the owner, a property may become less desirable and therefore drop in value. Conversely, any benefits provided to the owner of a dominant estate that are transferable may be deemed more valuable to the next prospective owner.

While the way you establish an easement specifically depends on your property needs, there are a few general tips for obtaining one:

1. 1. Outline your needs. Obtaining legal use of another person’s property can be a tricky endeavor. Before you seek permission from the landowner, outline what you are asking for: the part of their land you want to use, the size, for what purpose, and how long.
2. 2. Talk to the landowner. Contact your neighbor or relevant property owner about establishing an easement. If the other party is willing, you may be able to negotiate reasonable terms to use their land without further issues.
3. 3. Draft an agreement. You can work with a real estate lawyer to draw up a contract that outlines the terms both property owners have agreed upon. Include any pertinent details and work with your lawyer to ensure it follows all the legal requirements regarding property transfer in your state.
4. 4. Get your agreement notarized. Have the easement agreement notarized to make it official. Notarizing the signed document can make it less likely the other party will try to back out of your contract.
5. 5. Record the easement. If you’ve drafted a written easement, contact your Recorder of Deeds Office to see how to get the easement recorded on the property deed.

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If you own property with an easement, you may wish to remove it. Easement laws vary by state, so you’ll want to consult with a licensed attorney. Here are some of the common tactics used to remove easements:

1. 1. Abandonment: If you can prove that the dominant estate has abandoned the easement, you may be able to terminate it. For example, if abandoned train tracks run through your property, but the transit authority still has an easement on your home, you may be able to dissolve the easement and remove the tracks.
2. 2. Condemnation: The government may be able to end an easement by condemning the relevant property.
3. 3. Demolishment: Occasionally, demolishment of an existing structure will make an easement obsolete.
4. 4. End of necessity: You can terminate an easement of necessity (such as access to a public road) when that necessity is no longer relevant (for example, a new road allows access to the property in question).
5. 5. Expiration: Your easement may have an end date, in wich case termination involves simply reaching that date.
6. 6. Merger: When the dominant and servient estates are the same, easements terminate via merger. For example, if you have an easement on an adjacent lot, and then purchase the lot, that merger will end the easement.
7. 7. Recording act: If you purchase land without knowledge of a prior easement, you may be able to terminate the easement.
8. 8. Release: The dominant estate can release the servient estate from an easement at any time in writing.
9. 9. Prescription: If the servient estate prevents the dominant estate from using the easement for long enough, they may be able to remove the easement.

All you need is a MasterClass Annual Membership and our exclusive video lessons from prolific entrepreneur Robert Reffkin, the founder and CEO of the real estate technology company Compass. With Robert’s help, you’ll learn all about the intricacies of buying a home, from securing a mortgage to hiring an agent to tips for putting your own place on the market.