What is an easement?

Easements refer to the right of one property owner to use the property of another. Homeowners often require an easement to access their land. Without it, they would be landlocked.

Types of easements

The most common type of easement is used for ingress and egress. This type of easement creates a right of way allowing one property owner to transverse a portion of another’s land to access their property.

For example, Sally cannot reach her property from a public road without crossing over Juan’s property. An easement for ingress and egress would allow Sally to reach her home.

An easement creates a tenement relationship between two parcels of real estate since it:

  • benefits one property, referred to as a dominant tenement, whose owner is entitled to the easement; and
  • burdens another property, referred to as a servient tenement, the owner’s use of which is subject to the easement.

When an owner whose property is burdened by an easement interferes with the use of the easement by a neighbor whose property benefits from the easement, the neighbor is entitled to have the use of the easement reinstated. The easement is reinstated by removal, relocation or modification of the interference.

Further, the neighbor who holds the easement is entitled to compensation for their money losses caused by the servient tenement owner’s obstruction of the neighbor’s use of the easement. [Moylan v. Dykes (1986) 181 CA3d 561]

An easement burdening an owner’s property as an encumbrance on their title is classified as either:

  • an appurtenant easement, meaning the allowed use belongs to and benefits an adjacent property and is said to run with the land as an interest the adjacent property holds in the burdened real estate; or
  • an easement in gross, meaning it belongs to an individual, not land, as their personal right to a specified use of the burdened real estate.

An appurtenant easement is incidental to the title of the property which benefits from its use. An easement is not reflected as a recorded interest on the title to the parcel of land it benefits. Nor is it a personal right held by a particular individual who may now or have previously owned the parcel benefiting from the easement.

Accordingly, an appurtenant easement is recorded as an encumbrance on title to the burdened property. The easement remains on the property’s title after a conveyance to new owners of either the benefitting or burdened property. To be enforceable, the easement does not need to be referenced in the grant deed conveying either property to new owners since it runs with the land. [Moylan, supra]

Conversely, an easement in gross benefits a particular person and is held only by the individual who may use the easement. No parcel of real estate may benefit from an easement in gross since only the individual holding the easement can benefit.

An easement in gross is not transferred with the sale of real estate owned by the holder of the easement. However, the right can be transferred by the easement holder to another person in writing – unless the transfer of the easement in gross is prohibited by a provision in the document creating the easement. [LeDeit v. Ehlert (1962) 205 CA2nd 154]

A property owner cannot acquire a prescriptive right to air, light, or an unaltered view over neighboring properties. However, property owners can hold an easement created by a grant which restricts a neighbor’s ability to erect or maintain any improvement which interferes with the owner’s right to air, light or view. These types of easements can only be established by written agreement between neighboring owners, not by implication or prescription. [Petersen, supra]

Similarly, solar easements are a relatively recent type of easement established with the intent of encouraging the productive use of solar energy systems as a matter of public policy. A solar easement granted in a written instrument needs to state:

  • the measured angles by which sunlight is to pass;
  • the hours of the day during which the easement is effective;
  • the limitations on any object which would impair the passage of sunlight through the easement; and
  • the terms for terminating or revising the easement. [Calif. Civil Code 801.5]

Solar easements are similar to easements of light, air or view since they restrict an owner’s ability to maintain any improvements interfering with a neighbor’s solar energy system. [See RPI Form 322]

A conservation easement is a voluntary conveyance of the right to keep the land in its natural, scenic, historical, agricultural, forested, or open space condition. It is conveyed by an owner of real estate to a conservation organization or government agency. Conservation easements are perpetual in duration and are binding on all successive owners of all property burdened by the easement. [CC §§815.1, 815.2 (b)]

History behind the Word

“Easement” is an Anglo-Norman term coined in the late 14th century. It comes from the Old French word aisement meaning “comfort, convenience, use and enjoyment” and from aisier meaning “to ease.” The current meaning of the word, which is the legal right of one property owner to use the property of another, was first used in the early 15th century.