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Legal Dictionary

easement

Legal Definition of easement

Noun

  1. A right of passage over a neighbor's land or waterway. An easement is a type of servitude. For every easement, there is a dominant and a servient tenement. Easements are also classified as negative (which prevents the servient land owner from doing certain things) or affirmative easements (the most common, which allows the beneficiary of the easement to do certain things, such as a right-of-way). Although right-of-ways are the most common easements, there are many others such as rights to tunnel under another's land, to use a washroom, to emit smoke or fumes, to pass over with transmission towers, to access a dock and to access a well.

Definition of easement

Pronunciation

  • (US) IPA: /ˈiːzmənt/

Etymology

    From Old French aisement.

Noun

easement (plural easements)

  1. (law) Legal right to use another person's property

    The power company has an easement to put their poles along the edge of this land.

  2. (archaic) Relief, easing.

    * 1666, John Bunyan, Grace Abounding to Chief of Sinners
    This therefore was a great easement to my mind, to wit, that my sin was pardonable,...

  3. (archaic) Shed, a small outbuilding.

    * 1888, Sir Richard Burton, The Book of The Thousand Nights And A Night
    Now at that time all the cabinets of easement were full of people, nor did one remain vacant, ...

Further reading

An easement is a non-possessory interest to use real property in possession of another person for a stated purpose. 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. In some jurisdictions, another term for easement is equitable servitude, although easements do not have their origin in equity.

Unlike a lease, an easement does not give the holder a right of "possession" of the property. A license, which is a lesser interest than an easement, only gives a holder a personal privilege to use land of another for a limited purpose. For example, a license is given when a landowner gives his neighbor a verbal permission to park a car on his driveway, or to park an automobile for a limited period. A license can be terminated much more easily than easements. A license is similar to but different from a wayleave.

An easement also differs from a license in that the benefits of most easements (appurtenant easement) flow to an adjacent parcel of land, not to a specific person (easement in gross). As such, the owner of the dominant tenement (the adjacent parcel that benefits from the easement) will continue to enjoy the easement, even if he is not the initial owner of the tenement.

The rights of an easement holder vary substantially among jurisdictions. Historically, the common law courts would enforce only four types of easement: the right-of-way (easements of way), easements of support (pertaining to excavations), easements of "light and air", and rights pertaining to artificial waterways. Furthermore, easement could only attach to an adjacent land, not to a specific person. Such rules no longer hold in many jurisdictions.

TYPES

Public and private easement

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 easement

In the U.S., an easement appurtenant is one that benefits the dominant, adjoining land. An easement in gross is personal to the holder of the easement and does not pass automatically to another person when the easement holder's property is sold and bought.

Easement in gross

An easement in gross benefits an individual or a legal entity, rather than a dominant estate. The easement can be for a personal (an easement to use a boat ramp) or a commercial use (an easement given to a railway to build and maintain a rail line across property). In earlier times, an easement in gross was neither assignable nor inheritable, but today commercial easements are freely alienable. This is not true in England and Wales where easements cannot be in gross.

Floating easement

A floating easement is when there does not exist any fixed location, route, method or limit to the right of way.[1][2][3] For example, a right of way may cross a field, without any visible path, or allow egress through another building for fire safety purposes. A floating easement may be public or private, appurtenant or in gross.

One case defined it as: "(an) easement defined in general terms, without a definite location or description, is called a floating or roving easement...." Furthermore, "a floating easement becomes fixed after construction and cannot thereafter be changed."

Structural encroachment

Some legal scholars classify structural encroachments as a type of easement.

References:

  1. Wiktionary. Published under the Creative Commons Attribution/Share-Alike License.



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