Easements 101: What They Are and How They Work
Easements are one of the most significant concepts in real property law. An "easement" is defined as "a right, acquired from the owner of the servient tenement, to use the property for a designated purpose." An easier way to think of an easement is that it is a "burden" on a parcel of land known as the "servient estate" that grants an individual the right to use the land for a particular purpose. An easement does not convey ownership and title in the traditional sense. Easements do not transfer compositional rights to land; they instead transfer the right to access land to a particular extent.
There are many types of easements, two basic categories are "easement of necessity" and "easement by prescription." An "easement of necessity" arises when a parcel of land that was formerly part of a larger tract is cut off without any means of ingress or egress. For example , if there was once a natural waterway that connected two pieces of property, and the waterway dried up rendering the properties to be separated with no other way of egress or ingress, an easement by necessity would exist. An "easement by prescription" is similar to a prescriptive easement. An easement by prescription is an easement that may be acquired by using the easement and openly using the easement to the point where an adverse possessor may obtain ownership of the easement. Easements are important because they also are an easy way to privatize public rights that only benefit a single private individual. Because of this, easements are typically carefully scrutinized when someone attempts to create them by deed. As just one example, think about what it would mean to have an easement to a public park on campus – it would mean that an individual could trespass on campus whenever they wanted.
The Different Kinds of Easements You Can Have
Easements can arise under several different circumstances, which may dictate their enforceability as well as what rights each party has. Below are descriptions of some of the most common ways easements are created and examples of each type.
Express Easement
The most common type of easement is an easement by express grant. This type of easement must be in writing and must be recorded in the county’s official land records to be enforceable. An example of an express easement is my neighbor (Owner B) owns the property next to mine (Owner A). Owner A sells a 20-foot wide strip of property along my western border to Owner B. In the deed, Owner A grants to Owner B an express easement that will allow him to "maintain a driveway to efficiently access Owners B’s property." The easement is signed by Owner A, creating a right for Owner B to cross over Owner A’s property to access Owner B’s property.
Prescriptive Easement
An easement can also arise when someone continuously uses the property of another for 21 years or longer without permission, as long as the use of the property has been open and notorious. An example of a prescriptive easement is Owner B’s driveway outside his property line has crossed over onto the eastern edge of the Owner A’s property for the last 30 years. Owner A has used the property parcel where Owner B’s driveway is located. Owner A never told Owner B to stop using the property. Owner B could try and force Owner A to acknowledge that he has a prescriptive easement and the right to use the area of Owner A’s property that Owner B has been using for the last 30 years.
Implied Easement
An easement will sometimes arise if the previous owners of the land (as opposed to the current owners) acted together to create a situation where one owner used the property of the other owner. In this situation an implied easement or an easement by implication, may arise. An implied easement will not be extinguished by an involuntary transfer of the property. As with all easements, an implied easement may also be terminated under certain circumstances. For example, assume that Owner A owns contiguous properties X and Y. Owner A and his neighbor, Owner B, enter into a contract under which Owner A sells property Y to Owner B. Then Owner A sells property X to a third party, Owner C. In the deed for property Y, Owner A reserves an implied easement for Owner B to cross property Y via a road running perpendicular to the property line of property X to property Y. In this situation, Owner B has an implied easement across property Y to access property X (which is now owned by Owner C) for purposes of ingress and egress (i.e. to access property X from property Y and property Y from property X).
Easement by Necessity
Easements can also be implied by law whether through necessity or implication. In an easement expressed by necessity, the property owner has no access to a public road except by crossing the property of another. In this circumstance the necessity of crossing the other owner’s property creates a right of way. An example of an easement by necessity is where Owner A owns two properties that are isolated from the public road by a third property owned by Owner B. Under these circumstances, Owner A has a right to a landlocked property and an easement by necessity would exist for Owner A to cross the property of Owner B to access the public road. Easements granted by necessity can be terminated if the necessity ends. For example, if the property owned by Owner B is sold to another property owner, the easement by necessity may be terminated.
How to Legally Create an Easement
The legal process of establishing an easement for neighbors is often non-judicial, that is to say, it does not usually require going to court. It will require written documentation in order to properly bind you and your neighbor to the easement. Occasionally, it may be necessary to establish an easement if no easement existed previously or if the exact parameters of the easement are unclear. If you are purchasing property, the deed or title company performing the title search should find this type of issue whenever title to the property is listed in the chain of title.
For an easement by grant to be established:
You should always have your easement drawn up by an attorney if the easement is more than very simple or if property in Ohio is going to be sold. Any document you intend to record with the County Recorder’s office becomes a public document, and if the easement is not accurate, it could adversely affect the value of property owned by either party. Easements are like any other contract; they should be read and understood before anyone signs.
Often it is necessary to have a survey performed to establish the easement. Ohio does not have any specific requirements for easement surveys, but it would be prudent to use a licensed engineer or a surveyor who is familiar with easements specifically.
In a situation where neighbors agree on easement language, the easement will not need to go to court to be established. The stipulated easement can be added to the deed for the parties’ properties, which will accomplish the same result as a court order as long as both parties’ deeds are amended.
Occasional court action to establish easements is necessary when there is a dispute between neighbors regarding the easement or where the easement is recognized by the court only.
It is important to note that not all easement disputes must go to trial or judgement in front of a judge. Many times these cases are settled between the parties involved with the assistance of their attorneys and/or mediation. If the easement in question is shown to be valid, the court will usually order it be recorded with the County Recorder’s office because this procedure grants the easement "sacredness of judgment" under the Ohio Constitution. This means that the easement is automatically valid against the world. To clarify, once you file this judgment in the official county records, you do not have to keep hunting for the easement in question, and you can be sure that everyone is bound by it.
Easement Disputes: What to Do if You Have One
The scenario is not unusual in real estate law: two neighboring landowners are squabbling over the precise location or terms of an easement they each thought was clear when they executed their deed six months ago. The situation may be further complicated by the fact that one of the neighbors installed a fence and landscaping on his side of the easement after executing the easement, thus making it "uni-lateral" and leaving the "dominant" owner with what is perceived to be a self-destructive choice of either tearing out the trespass or allowing the encroachment to remain.
The creation of an easement by express grant – as opposed to easement by necessity or prescription – generally provides the clearest guideposts. Nevertheless, disputes can arise if there are inaccuracies in the language of the easement; the basis of the easement such as the maintenance responsibilities not being clearly defined; and restrictions on the dominant owner’s ability to develop their land. (Such restrictions can be remedied by judicial decree or other means.)
Whatever the basis of the dispute, the first step in resolving the dispute is to review the easement’s terms and conditions to see if they specifically address the issue. Even if they do not, easements run with the land and can be interpreted to real property law principles.
As with any civil dispute, these principles lead to the courts to determine easement dispute issues. Likewise, alternative dispute resolution value is invaluable. Prior to or even during legal proceedings, neighbors can look to mediation and arbitration as ways of reaching mutually acceptable solutions to their disputes without involving the court.
Easements Can Negatively Affect Your Property Value
Easements may either increase or decrease the value of a parcel. Although an easement does not include ownership of land, the right of use granted under an easement can be extraordinarily valuable. For example, an easement allowing a property owner to cross an adjoining property to reach a public road can be more valuable to a lonesome tract of land than the tract itself. The owner of the easement has a right to traverse a neighboring property, and the neighboring property may have no other road access.
These types of easements are called appurtenant easements. Whereas the owner of land with an appurtenant easement has a right of use over the neighbor’s land, the property owner may also be subject to additional liability based on that easement. For example, an easement may grant the right to cross a neighboring property, but that does not relieve the owner of the easement from the legal responsibility of keeping that easement free from damage. In addition to monetary damages, an easement may also give the owner of the servient land an express right of abatement. This means that the owner of the land burdened by the easement may actually have a right to enter the property and end the conveyance of that right of use by cutting a ditch or tearing down a fence.
Easements may also be valuable to the property owner in another way. Because they require reasonable notice and opportunity to cure a breach, an easement often creates a covenant, or an enforceable promise, between two property owners. If one of the owners breaches the covenant, the other owner has a legal claim for a monetary penalty . To see if easement conditions have been met, the interested parties should study the easement and look for language indicating that the covenant runs with the land. An easement lacking this language usually only subjects the original grantee and his heirs to monetary damages from the breach, and therefore does not benefit subsequent property owners. Property owners should be aware of easement terms and conditions, and should be diligent in fulfilling them. An owner’s non-compliance could render him liable to monetary damages, or even after-the-fact abatement.
The fact that easements may run with the land is one reason they are so valuable to property purchasers and developers. These purchasers and developers can sell the property with the easements running with the land. Buyers may even see an increase in property value if properly executed easements add levels of access to otherwise difficult to reach tracts. A recent survey by tax advisors at the National Association of Realtors® put the average value of easements to conservation organizations at $4,935.
Easements may also have private benefits to the owner of an adjoining tract; these benefits should be taken into account when assessing above-ground or below-ground property valuation. For example, an easement’s value will fluctuate dramatically if it traverses a busy street, a railway that ships hazardous materials, or an airport. Or an easement that offers a property owner the right to fish in a pond on his neighbor’s backyard without limitation on the frequency of use may also drive property value significantly. Knowing the precise language of an easement is the best way for property buyers to assess the total value of any parcel.
An Overview of Changes to Easement Law in Ohio
In recent years, we have seen a movement over states that have adopted some form of the Restatement (Third) of Property, Servitudes to their easement law. In regard to Ohio, there was a recent publication in Ohio Easement Law – A Guide for Ohio Land Owners and Land Lawyers, authored by us, presenting the trajectory of easement law. The work also advocates a liberalized adoption of the Restatement of Servitudes and explains the desirable nature of such an adoption. We would like to review some recent changes in Ohio law. In 2012, the useful and highly important case of Liming v. Cutz. In Liming, the Tenth District Court of Appeals held that a landowner or possessor has a duty not to materially alter an easement to the detriment of its holder. In that case, the defendant was held to have materially altered the lay of a creek, which crossed both his property and the plaintiffs, without regard to the rights of the easement holder. Thus, the defendant was found to have acted with negligence and the plaintiff easement holder was not to blame for the alteration. Liming is relatively new law and thus may develop further. Nevertheless, it is again, a case where the Court looks to give rights to the holder of the easement, as distinguished from its grantor. Liming is a mixed bag for practitioners in that it requires a party to inquire and know the rights of the holder of an easement but then applies a negligence standard that requires a great degree of inquiry over the easement as well. The Court draws from the other Restatement sections and from decisions in Ohio, notably the 1961 case of Reab v. Mays, 172 Ohio St. 617, 178 N.E.2d 679 (1961), which was part of the Restatement (First) of Property and is thus not strictly binding but is certainly authoritative. Additionally, the Ohio Legislation has created a statutory easement for "drainage, water flow, wastewater, stormwater, and flood control." Named Ohio Revised Code section 3703.20. As suggested by the name, the statute encourages the use of the natural watershed for the drainage of stormwater, floodwaters, and the like. The statute also creates easements by necessity in certain circumstances. See, O.R.C. 3703.20(B) and (C); however, the section makes a clear limitation that certain reasons may not be relied upon to create a drainage easement. See, O.R.C. 3703.20(D). The statute should be read very conservatively, looking closely at the requirements of actual necessity and ease in the application of the drainage easement. While drainage is not at the forefront of current easement law, it is very important to consider given the practicalities of water flow and the like on properties. The statute was passed in the summer of 2012 and is the first legislative change to easement law in the state since the adoption of the Restatement (Second) of Property, Servitudes in 1980.
Property Owners’ Top Tips for Easement Law
When dealing with easements, Ohio property owners should consider several practical steps to avoid potential land disputes and litigation.
Consult with Your Legal Professional
Easements are subject to significant legal precedent in Ohio and elsewhere. Therefore, when considering the creation of an easement or attempting to understand or enforce the terms of an existing easement, Ohio property owners should consult with a professional experienced in real estate law.
Understand Your Rights
If an easement crosses your property (i.e., you are the servient property owner), it is important to understand your rights. First, given the significance of property rights, all easements must be established by contract, and the terms of such contracts must be strictly followed. Second, you may be able to enforce restrictions and limitations in the easement against the servient property owner. Specifically , you are permitted to take action to stop or remove any activity the dominant owner engages in that is outside the scope of the easement granted. Third, if the activity occurring on your property pursuant to the easement materially damages your property, you may be entitled to compensation for such damage.
Maintain Clear Communication with the Dominant Owner
It is in the best interests of both the servient and dominant property owners to communicate clearly and openly about easement rights and responsibilities. This includes a discussion about current and future development plans, as well as the extent of permitted use and required maintenance and repair of the easement. Furthermore, if you are the servient owner, make sure that you have sufficient insurance coverage (including liability coverage) to protect you from potential liability for any issues that may arise from the easement.