The subject of easements is confusing to a lot of people, although it is an important matter for those interested in learning about the dynamics of the real estate industry. You might also want to know the law associated with easement if you are about to go and buy new real estate. That is because easements do not dissolve if a property is sold to a new owner, but you will read more about that in the easement laws section below.
What are Easements?
Of course, to get to understand easements, you need to know what they are ? many of you might need that information. So, letís begin with a brief description of the fundamentals of easements.
An easement is the legal permission to use somebody elseís land, in simplest of terms. When a party (often utility companies) approaches a court, the court may hear the application and issue an easement based on the circumstances. Officially, the easement is a signed document that allows the recipient to use a property conditionally and without any change to the propertyís ownership.
Easements are issued with a clear description of the kind of use the recipient will be putting the property through. As long as other people (actual owner or occupant of the land) do not interfere with the court order and get in the way of the easement recipientís permitted use of the property, the recipient cannot ask them to leave. On the other hand, the legal owner of the property can exclude any parties involved apart from the easement recipient as long as the recipient is using the property according to the court order.
Property Easement Creation, Types and Transfers
As we said above, easements are issued by court order. To shed some more light on the possibilities involved, property easement can be created by means of any legal conveyance as part of a deed in the form of a written and signed document. This document could also be a contract or a will. Whichever form the document may take, the easement it allows becomes an express easement.
Express easements can be signed for either a positive easement, which is the permission for the easement holder to use the ownerís property for specific purposes, or a negative easement, which essentially prohibits the easement recipient from specific actions or practices. For example, to allow a recipient to use the property for parking their car is a positive easement while prohibiting them from parking any more than three cars on the property is a negative easement.
On the other hand, we have implied easements, which are created out of necessity based on the circumstances. Most often, these easements are assumed on a large piece of land that is divided into smaller pieces after the easement right was understood and sold to multiple new owners. However, there are certain legal conditions for implied easements to take effect, which are discussed in the next section on this page and taught in much detail our live and ondemand webinars.
What Easement Laws Say
Going back to the conditions of implied easements, it is important to understand that easement laws demand the following:
- There should be a clear necessity for the easement to enjoy the original property before it is assumed for the severed pieces.
- The original property must be severed for ownership to multiple parties.
- The purpose of the implied easement existed before the land was severed and sold to multiple owners.
There are a few legal obligations to remember when you are dealing with easements:
- While a court of law generally considers an easement a permanent right, the issuer should expressly say so in the document for the recipient to avoid any legal complications later on.
- The conditions in the contract for the transfer of the propertyís ownership will decide the legitimacy of transference of the easement. In some states, the easement is assumed unless expressly discounted in the new documents while, in some others, its legitimacy expires as the new ownership takes effect.
- In some cases, depending on the nature of the actions involved, misuse of the property may lead to dissolution of the easement, but it all depends on which state of the country you are talking about.
Our comprehensive online courses and webinars discuss these matters about easements in greater detail and can fully educate you about the problems related to the subject.