Real Estate Litigation 101: Easements

Neighbor boundary disputes and other real property litigation often involve claims of easements. Not even all real estate lawyers are clear on what constitutes an easement and how to establish a claim of easement. This article discusses what easements are and are not, and how to establish or defeat a claim for an easement.

An easement is an interest in the land of another, which entitles the owner of the easement to a limited use or enjoyment of the other’s land. Notice right up front that the land is owned by “another”, meaning an easement is not a claim of ownership. An easement creates a nonpossessory right to enter and use land in another’s possession and obligates the possessor not to interfere with the uses authorized by the easement.

Easements can be established in a number of ways, including (1) an express grant, (2) an express reservation, (3) an implied grant, (4) an implied reservation, (5) necessity, (6) prescription, (7) a recorded covenant, (8) dedication, (9) condemnation, (10) estoppel, or (11) a court decision.

Easement lawsuits typically arise between neighboring landowners. A common example is where a back house has an access easement over the driveway of the front house or where two side-by-side properties share a common driveway. The easement, whether expressly granted or whether implied by a history of use, allows the one property owner to traverse the property of the other to access his or her property.

Notably, an easement for a particular purpose does not include any other uses. While a neighbor may have a right to use the driveway of his neighbor to access his property, it does not give him the right to “possess” the property in any way, such as building garage or a basketball court on the driveway.

Another distinction to be aware of is the difference between an easement and adverse possession. An easement provides for the use of someone else’s property while adverse possession involves a claim of ownership of someone else’s property. Adverse possession requires that an owner prove that he or she paid property taxes on the property they seek to claim. Because property taxes are determined by the property’s legal description rather than a party’s use of property (i.e., the placement of a fence), it is usually very difficult to establish the payment of property taxes on someone else’s property. Many people (and attorneys) believe that because they have used someone else’s property for many years but have not paid the taxes, they are entitled to an ‘exclusive easement’. However, that is really just a claim of ownership by another name and is not allowed.

As an example, between neighbors in a boundary dispute, even if an encroaching neighbor were to claim a ‘prescriptive easement’ over their neighbor’s property, that would only encompass a right to use the property, but not a right to exclude the true owner from their own property. In practical terms, this means an encroaching neighbor could not erect a fence or other boundary to exclude the true owner from their own property, based on a claim of easement.

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