For What Reasons Are Easements Created?

Easements allow individuals who are not owners of a specific piece of land to use that land for tailored purposes. When an easement is created, the easement holder is granted a nonpossessory interest in the section of land affected by the easement. This means that while the landowner retains exclusive ownership rights to their property, the easement holder is granted a legally enforceable right to use some fraction of the landowner’s property for specific purposes.

It isn’t always obvious why certain legal tools exist in the first place. Why, for example, would the law honor the rights of someone other than the landowner to use that landowner’s private property? Easements are created for a variety of reasons. The most straightforward way to explain why easements are created in the first place is to explore the most common kinds of easements available.

The Rationale Behind the Creation of Different Kinds of Easements

Express Easements – Express easements are created via written contracts. They allow property owners to consent to the creation of easements, subject to any number of conditions. There are seemingly endless reasons why a landowner may willingly consent to the creation of an easement. Perhaps most common are utility easements, which allow utility companies and city workers onto private land to lay and/or maintain electrical, gas, water, and sewage lines. Property owners also commonly consent to easements that allow them to close real estate deals. For example, a landowner may only be able to utilize their land in a specific way if they allow a neighboring landowner an easement as a concession to some kind of dispute. Because they can be created for virtually any reason at all and subject to any kind of conditions, express easements are the most flexible easements available.

By contrast, easements by necessity are created by a court order for one very specific purpose. If a landowner has no way to access a parcel of their land without traveling through another landowner’s property, they may ask the court to grant them an easement by necessity.

Implied and prescriptive easements are created by a history of the aspiring easement holder’s use of the property in question. Implied easements may be created through a history of consensual use of property, while prescriptive easements are created by continually using land (for a specific amount of time) without the landowner’s permission. Usually, these easements are created because someone needs to get somewhere and the shortest way to access their destination is through the landowner’s property. For example, if the only access to a public beach is either a formal entrance or through private property two miles away from the formal entrance, that shortcut may be used so frequently and for so long that its usage forms the basis for creation of a legally enforceable easement.   

Legal Assistance Is Available

It’s important not to make assumptions about what behaviors will and will not create an easement. Instead, scheduled a consultation with an experienced real estate attorney, who is knowledgeable about easement-related issues. Taking this proactive step will allow you to protect your rights and preserve your legal options to the best of your ability.