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Easement 1 Easement An easement is a certain right to use the real property of another without possessing it. Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions. The rights of an easement holder vary substantially among jurisdictions. Historically, the common law courts
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  Easement1 Easement An easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fishin a privately owned pond. An easement is considered as a property right in itself at common law and is still treatedas a type of property in most jurisdictions.The rights of an easement holder vary substantially among jurisdictions. Historically, the common law courts wouldenforce only four types of easement:1.Right-of-way (easements of way)2.Easements of support (pertaining to excavations)3.Easements of light and air 4.Rights pertaining to artificial waterwaysModern courts recognize more varieties of easements, but these srcinal categories still form the foundation of easement law. Basic terms Affirmative and negative easements An affirmative easement is the right to use another's property for a specific purpose, while a negative easement is theright to prevent another from performing an otherwise lawful activity on their property.For example, an affirmative easement might allow land owner A to drive their cattle over the land of B. A has anaffirmative easement from B.Conversely, a negative easement might restrict B from blocking A's mountain view by putting up a wall of trees. Ahas a negative easement from B. Dominant and servient estate Easements require the existence of at least two parties. The party gaining the benefit of the easement is the dominant estate (or dominant tenement), while the party granting the burden is the servient estate (or servienttenement).For example, the owner of parcel A holds an easement to use a driveway on parcel B to gain access to A's house.Here, parcel A is the dominant estate, receiving the benefit, and parcel B is the servient estate, granting the benefit orsuffering the burden. Public and private easements A private easement is held by private individuals or entities. A public easement grants an easement for a public use,for example, to allow the public an access over a parcel owned by an individual. Appurtenant and in gross easements In the U.S., an easement appurtenant  is one that benefits the dominant estate and runs with the land , i.e. , aneasement appurtenant generally transfers automatically when the dominant estate is transferred.Conversely, an easement in gross benefits an individual or a legal entity, rather than a dominant estate. The easementcan be for a personal use (for example, an easement to use a boat ramp) or a commercial use (for example, aneasement to a railroad company to build and maintain a rail line across property). Historically, an easement in grosswas neither assignable nor inheritable, but today commercial easements are freely transferable.  Easement2 Floating easement A floating easement exists when there is no fixed location, route, method, or limit to the right of way. [1]   [2]   [3] Forexample, a right of way may cross a field, without any visible path, or allow egress through another building for firesafety purposes. A floating easement may be public or private, appurtenant or in gross. [4] One case defined it as: (an) easement defined in general terms, without a definite location or description, is called afloating or roving easement.... [5] Furthermore, a floating easement becomes fixed after construction and cannotthereafter be changed. [6] Structural encroachment Some legal scholars classify structural encroachments as a type of easement. Creation Easements are most often created by express language in binding documents. Parties generally grant an easement toanother, or reserve an easement for themselves. Under most circumstances having a conversation with another partyis not sufficient. Courts have also recognized creation of easements in other ways. Express easement An easement may be implied or express. An express easement may be granted or reserved in a deed or otherlegal instrument. Alternatively, it may be incorporated by reference to a subdivision plan by dedication , or in arestrictive covenant in the agreement of an owners association. Implied easement Implied easements are more complex and are found by courts based on the use of a property and the intention of thesrcinal parties. Implied easements are not recorded or explicitly stated, but reflect the practices and customs of usefor a property. Courts typically refer to the intent of the parties, as well as prior use, to determine the existence of animplied easement. Easement by necessity Despite the name, necessity alone is an insufficient claim to create any easement. Parcels without access to a publicway may have an easement of access over adjacent land if crossing that land is absolutely necessary to reach thelandlocked parcel and there has been some srcinal intent to provide the lot with access, but the grant was nevercompleted or recorded but thought to exist. A court order is necessary to determine the existence of an easement bynecessity. To obtain this generally the party who claims the easement files a lawsuit and the judge weighs therelative damage caused by enforcing an easement against the servient estate against the damage to the dominantestate if the easement is found not to exist and thus landlocked. Because this method of creating an easementrequires imposing a burden (the easement) upon another party for the benefit of the landlocked owner, the courtlooks to the srcinal circumstances in weighing the relative apportionment of benefit and burden to both lots inmaking its equitable determination whether such easement shall be created by the court. This method of creating aneasement, being an active creation by a court of an otherwise non-existent right, will be automatically extinguishedupon termination of the necessity (for example, if a new public road is built adjacent to the landlocked tenement oranother easement is acquired without regard to comparison of ease or practicality between the imposed easement andany valid substitute).There is also an unwritten form of easement referred to as an implied easement or easement by implication, arisingfrom the srcinal subdivision of the land for continuous and obvious use of the adjacent parcel (e.g., for access to aroad, or to a source of water) such as the right of lot owners in a subdivision to use the roadway on the approved  Easement3subdivision plan without requiring a specific grant of easement to each new lot when first conveyed. An easement bynecessity is distinguished from an easement by implication in that the easement by necessity arises only when strictly necessary , whereas the easement by implication can arise when reasonably necessary . Easement bynecessity is a higher standard by which to imply an easement. In India,easement of necessity could be claimed onlyin such cases where transfer,bequeath or partition necessitates such claim.As an example, some U.S. state statutes grant a permanent easement of access to any descendant of a person buriedin a cemetery on private property.In some states, such as New York, this type of easement is called an easement of  necessity. [7] Easement by prior use A sells the front lot, but forgets to get aneasement for driveway access. An easement may also be created by prior use. Easements by prior useare based on the idea that land owners can intend to create aneasement, but forget to include it in the deed.There are five elements to establish an easement by prior use:1.Common ownership of both properties at one time2.Followed by a severance3.Use occurs before the severance and afterward4.Notice1.Not simply visibility, but apparent or discoverable by reasonableinspection (e.g. the hidden existence of a sewer line that aplumber could identify may be notice enough)5.Necessary and beneficial1.Reasonably necessary2.Not the strict necessity required by an easement by necessity Example A owns 2 lots. One lot has access to a public street and the second is tucked behind it and fully landlocked. A'sdriveway leads from the public street, across the first lot and onto the second lot to A's house. A then sells off thefirst lot but forgets to reserve a driveway easement in the deed.A srcinally had common ownership of both properties. A also used the driveway during this period. A then severedthe land. Although A did not reserve an easement, the driveway is obviously on the property and a reasonable buyerwould know what it is for. Finally, the driveway is reasonably necessary for a residential plot; how else could A getto the street?Here, there is an implied easement.  Easement4 Easement by prescription Easements by prescription , also called prescriptive easements , are implied easements granted after the dominantestate has used the property in a hostile, continuous and open manner for a statutorily prescribed number of years.Prescriptive easements differ from adverse possession by not requiring exclusivity.Once they become legally binding, easements by prescription hold the same legal weight as written or impliedeasements. But, before they become binding, they hold no legal weight and are broken if the true property owner actsto defend his ownership rights. Easement by prescription is typically found in legal systems based on common law,although other legal systems may also allow easement by prescription.Laws and regulations vary among local and national governments, but some traits are common to most prescriptionlaws.ã open and notorious (i.e. obvious to anyone),ã actual , continuous (i.e., uninterrupted for the entire required time period),ã adverse to the rights of the true property ownerã hostile (i.e. in opposition to the claim of another. This can be accidental, not hostile in the common sense)ã continuous for a statutorily defined period of timeUnlike fee simple adverse possession, prescriptive easements typically do not require exclusivity . In states that do,such as Virginia, the exclusivity requirement has been interpreted to mean that the prescriptive user must use theeasement in a way that is different than the general public, i.e. a use that is exclusive to that user, Callahan v.White, 238 Va. 10, 381 S.E.2d 1 (1989).The period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 yearsdepending upon local laws (usually based on the statute of limitations on trespass). Generally, if the true propertyowner acts to defend his property rights at any time during the required time period the hostile use will end, claimson adverse possession rights are voided, and the continuous use time period resets to zero.In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal property owner, theprescriptive easement may become a regular or implied easement rather than a prescriptive easement andimmediately becomes binding. An example of this is the lengthy Irish Lissadell rights of way case heard in 2010,that extended long-standing consents given to individuals into a public right of way. [8]   [9] In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts thetime for obtaining a prescriptive easement.Government or railroad owned property is generally immune from prescriptive easement in most cases, but someother types of government owned property may be subject to prescription in certain instances. In New York, suchgovernment property is subject to a longer statute of limitations of action, 20 years instead of 10 years for privateproperty.In most U.S. jurisdictions, a prescriptive easement can only be determined for an affirmative easement not a negative easement. In all U.S. jurisdictions, an easement for view (which is a negative easement) cannot be createdby prescription.Prescription may also be used to end an existing legal easement. For example, if a servient tenement holder were toerect a fence blocking a legally deeded right-of-way easement, the dominant tenement holder would have to act todefend his easement rights during the statutory period or the easement might cease to have legal force, even though itwould remain a deeded document.
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