Two people reviewing real estate documents

What Is An Easement? Everything You Need To Know

What Is An Easement? Everything You Need To Know

If you’re in the market for real estate in Massachusetts, or you already own property, it’s important to understand what easements are. These legal interests can affect both residential and commercial property and could also impact the value of the real estate. Is there an existing easement on your property, or do you want to know how an easement might help you?

An easement is a nonpossessory legal interest in someone else’s property. Easements are often, but not necessarily, held by a neighbor to someone’s real estate. The easement holder’s rights are specific and restricted, meaning the easement can only be used for limited purposes. The dominant estate is the property that benefits from the easement, while the servient estate is the land that is subject to the easement. Easements can also be held “in gross” by individuals or entities.

Some examples of easements are:

Utility Easements

These allow utility companies to access your property to repair or service utilities such as electric or water.

Access Easements

A person with landlocked property may have the right to access someone else’s land for the limited purpose of going to and from their property.

Negative Easements

These are most typically restrictions on other properties to preserve access to sunlight or a view.

Drainage Easements

These grant access to a third party, typically a municipal body, for the purposes of maintaining proper water drainage.

Prescriptive Easements

This general category of easements is established by adverse possession, which essentially means using property without express permission or a recorded instrument. If a neighbor has regularly walked across a portion of your property for at least 20 years, he or she may have a prescriptive easement to the property even though you never granted permission to that person.

Easements by Implication

These exist where the circumstances indicate an easement was intended although not recorded. Easements like these may be created by necessity, for instance where a landlocked property owner could not otherwise access his or her property.

Adverse possession (prescriptive easements) and implication are two alternative ways to create an easement, but the standard method of doing so is by an express grant recorded in a property deed or other instrument. Easements generally run with the land. That means when you buy a piece of property with an easement attached, you are required to honor it or you could be held liable in court. 

The obligation to maintain the easement falls on the owner of the dominant estate. That means that any repair or maintenance costs are the responsibility of the easement holder, not the owner of the servient estate. Of course, the two parties can enter into an agreement to share these expenses.

There are several ways to terminate an easement, including but not limited to:

  • Abandonment, which requires proven intent on the part of the easement holder to no longer claim the easement
  • Release, a written termination given by the easement holder to the servient estate
  • Merger, where the same person ends up owning the easement and the servient estate
  • The necessity which originally created the easement no longer exists
  • Destruction of the servient estate, unless done so by the willful conduct of the landowner
  • Government condemnation by way of eminent domain

Legal issues abound with easements. Whether you are the dominant or servient estate holder, you may wish to retain legal counsel to assist with these and other matters:

  • Understanding the dominant estate’s easement rights when you purchase property
  • Disputes involving alleged misuse of the easement
  • Issues with proper recording of the easement in a deed or other instrument
  • Knowing how the easement might affect the value of your property before you buy it
  • Who bears responsibility for maintenance of an easement
  • Negotiating an easement with an adjacent property owner (particularly helpful to a commercial real estate owner)
  • Litigation and court proceedings concerning easements

The fact is, easements can both limit your property use and allow potential opportunities for maximizing its value. To speak to an attorney in our Real Estate & Land Use practice group to discuss if your property is affected by an easement or you wish to explore how one can benefit you, connect with us here.