Easements are nonpossessory rights under the law allowing a person to enter or use real property owned by another person for a specific reason as agreed on. The benefit is, the person gains access to a specific resource without having to own the land. It can best be described as “the right of way for an owner of land to use his/her land, while allowing another party to use the land for a certain purpose”. Furthermore, an easement can be similar to that of equitable servitudes or real covenants within the United States. However, steps are taken to merge these into servitudes by the Restatement (Third) of Property.
When it comes to paths that go through multiple properties, such as a road access to a public beach or access to a private fishing spot, an easement is helpful. It allows individuals to reach these areas or a certain resource by having the right of traveling through the private land according to common law, which has continued to be treated as a sort of property in the majority of jurisdictions.
Depending on the jurisdiction, easement holder rights can vary greatly. In history, there were only four types of easements enforced in common law courts:
- Easements of support – aimed at excavations
- Right-of-way easements
- Light and air easements
- Easements focusing on artificial waterways
Today, more types of easements are recognized by modern courts, but the easement law foundation still consists of the original categories.
Types of Easements
There are several types of easements, as briefly described below.
Negative and Affirmative Easements
Negative easements provide the right of preventing others from conducting an activity on the property that would otherwise be considered lawful. Meanwhile, affirmative easements give the right to use the property of another person for a certain purpose.
For instance, an affirmative easement can be used to give land owner (A) the right to drive cattle over land of another owner (B). Thus, person A has received affirmative easement from land owner B.
However, negative easements can be used to restrict person A from blocking the mountain view of person B by planting trees in their line of sight. Therefore, person A has received a negative easement from land owner B.
Dominant and Servient Estate
An easement as defined in 1956 by Evershed MR within Re Ellenborough Park Ch. 131, two or more parties are required for creating an easement. A party obtain benefits from an easement is considered the dominant estate, and the granting party of the benefit or burden is considered the servient estate.
Private and Public Easement
Private easement is held by private entities or individuals, while public easement provides right of public use.
Appurtenant and In Gross Easement
Within the United States, appurtenant easements provide benefits to a dominant estate, typically transferring automatically if dominant estates are transferred between parties. This type of easement provides property owners the right to access and only accessible via a neighboring property.
Whereas, ‘in gross’ easements provide legal or individual entities the benefit, instead of a dominant estate. This type of easement can be used for commercial or personal use.