How Do You Find Out if There Is an Easement on Your Property?

An easement is a legal right to use another person’s property. In other words, property easement rights allow another person to use or enter your land without possessing it. The individual or land that benefits from the easement is known as the “dominant tenement” or the “dominant estate.” The land that is burdened by the easement is known as the “servient tenement” or the “servient estate.”

An easement imposes a legal duty on landowners and may discourage buyers and investors from transacting businesses with you due to the obligations or restrictions they impose. This guide discusses easements and how you can identify them when purchasing a landed property.

What Are the Types of Easements?

There are two main types of easements:

• Affirmative easements: This kind of easement allows the easement holder to do something on the servient tenement. For example, the dominant tenement may lay utility lines on your land or access their land-locked property through yours.
• Negative easements: This easement permits the easement holder to stop the landowner from doing something they are otherwise permitted to do. For example, the dominant tenement may stop you from building structures that block their view or prevent you from building a structure that would affect the structural integrity of their property.

Beyond these two types of easements, there are multiple ways by which easements can be created, including:

• Easement by grant: This is one of the simplest easements created by express grant or reservation. The easement is in writing and complies with the formal elements of a deed.
• Easement by implication: Unlike express grants, easement by implication exists without a written instrument. Typically, they occur when there is an apparent and obvious use of one part of the land to benefit the other. The prior use establishes a pattern, causing the parties to believe the easement would continue, especially when the easement is reasonably necessary to the use and enjoy the easement holder’s land.
• Easement by necessity: These easements are created out of necessity, where the easement holder can only access their land by using yours. The easement is implied by law and permits people to cross and use the land for legitimate purposes.
• Easement by prescription: The easement is created when a person adversely possesses your land for twenty years or more. The possession must be actually continuous, open, and without the owner’s consent.

What Impact Does an Easement Have on a Property?

An easement imposes a duty on the servient tenement or property holder to allow the dominant tenement to use and enjoy their land. However, the usage must be reasonable. Such a duty may be positive or negative. As explained earlier, positive or affirmative easements require the landowner to do an act, while negative easements restrict them from doing something.

For example, if your neighbor has an access or driveway easement on your property, you must allow them to use it. You may have a duty to ensure the easement is available to the other party, including regularly paving the driveway or removing snow from the path. In comparison, the property owner may be prohibited from constructing a structure that obstructs the dominant tenement’s right to a view or diverts a natural body of water away from their property. 

An easement can saddle landowners with a financial burden or distort their plans. Additionally, because the easement may continue even after the land sale, it may discourage some buyers or investors from acquiring or investing in the property.

How to Find Out if an Easement Exists

There are several ways to find out if an easement exists on a property. The most straightforward approach is reviewing the deed of conveyance, lease agreement, or other recorded documents, especially for express grants. You may also search the records of the utility providers and county clerks in the area where the land is situated. Local easement records may reveal easements buried in previous transfer deeds that may still have legal effects.

However, finding out whether there is an implied easement on a property can be tricky due to a lack of documentation or express indication of the creation of an easement. The best approach is to consult an experienced real estate attorney to ensure the property you are considering is not encumbered by unexpected easements.

How to Nullify an Easement

Easements may be nullified or terminated in many ways, including the following:

1. Release

Terminating an easement by release involves executing a written instrument to nullify a party’s interest or right in an easement. This approach is straightforward and clear-cut because there is usually clear evidence of the party’s intentions. 

2. Estoppel

Estoppel arises when the dominant tenement communicates to the landowner, by words or conduct, their intention to modify or terminate the easement, and the landowner reasonably relies on the communication and changes their position. This bars the easement holder from enforcing the easement.

3. Merger

A merger occurs when the easement holder acquires the servient property. The legal requirement is that all the benefits and burdens associated with the land must come into single ownership. Once the interests in the land unite, there is no practical need for the easement to continue, as the new owner has the right to use the land as they please.

4. Abandonment

An easement may be terminated when the easement holder demonstrates, by physical action, an intention never to use the easement again. In this case, the landowner must establish an act on the part of the easement holder evidencing the intention to relinquish their rights and a long period of nonuse.

5. Necessity

When the necessity for which an easement exists is extinguished, the easement may also be terminated. However, easement created by express grants may not terminate automatically when the necessity ends. For example, if an easement was expressly granted to the owner of a land-locked property and an alternate access route is subsequently created, the easement may continue.

6. Frustration

Frustration occurs when circumstances beyond the parties’ control make it impossible to exercise the rights in the easement. An example is when the land is destroyed by a natural disaster, making it impractical to use the easement property.

7. Adverse Use

An easement may be terminated when another person without interest in or right to the easement property takes possession of the land and uses it in a manner inconsistent with its continued existence. The adverse possesser’s land use must be continuous and uninterrupted throughout the prescription period.

Contact Calabrese Law Associates for Assistance with Easements

Easements can limit the use of your land and discourage investors and buyers from doing business with you. Therefore, it is vital to take the necessary legal steps before purchasing a property.

Calabrese Law Associates has years of experience helping individuals and businesses acquire real estate in the Greater Boston Area. Our team of dedicated professionals can assist with existing easement and boundary issues and provide solutions tailored to your needs. Contact us today to learn more!

This publication and its contents are not to be construed as legal advice nor a recommendation to you as to how to proceed. Please consult with a local licensed attorney directly before taking any action that could have legal consequences. This publication and its content do not create an attorney-client relationship and are being provided for general informational purposes only.

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