Attorneys and Counselors of Law
Legal Matters is a regular column intended to address general legal concerns. Since every client walks in the door with a different set of circumstances, you should not rely on this column to provide specific legal advice. If you are in need of specific legal advice, please consult with an attorney; he or she will provide advice that is unique and tailored to your legal needs.
An easement is an interest in land that gives the holder some lawful use over the property of another. Although easements may be deeded, they do not convey ownership; easements convey only a specific “right to use.” For instance, where an easement is granted for the right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself that is granted to the easement holder.
The most common easement is a joint driveway. Utility easements are also very common and are regularly reflected on survey maps and in title searches. National Grid, for example, requests easements from landowners when it runs power lines under or over private property; the easement allows the companies to maintain and repair the lines in the future.
Easements may be created by express grant – through a deed or by way of an easement agreement. Under certain circumstances, an easement may be implied by necessity or by prior use. When land is subdivided, creating landlocked parcels, it is implied that the landlocked parcels will have an easement over non-landlocked parcels to access a public road.
Since easements “run with the land” – meaning that they are binding on future owners and users – they can be both a blessing and a curse. Often, an easement is created to serve an immediate need, but parties have no way of knowing how the land use will change in the future. For instance, a joint driveway that is intended to be used for residential use cannot later be used for commercial use without the consent of both parties. Likewise, the same driveway can’t lawfully be used to access properties other than those originally intended to benefit from the easement.
Thus, parties considering an easement agreement are wise to give careful thought to its intended use. Similarly, when buying property, it is critical to understand what rights you may or may not have in an easement that is located on the property.