Easments, A Property Right

By Jim Palmer Jr.

Property rights seem to be an ongoing hot topic since there are many people or entities that seem particularly intent on infringing upon those rights. Ownership of property is one of our country’s basic rights that we should never take for granted! While actual unfettered ownership is the highest and best use of this concept, there are property rights that can be used to one’s benefit without actually owning that particular piece of property, such as easements.

Easements are created for specific uses, most often to allow travel across another’s land to access property that does not front a public road. Easements can also be created for structures and other uses such as; wells, fences, power lines, or buildings.

It is not uncommon for someone to protect a view with an easement or even air space such as in an aviation easement near an airport. Most easements are non-exclusive and perpetual in nature, which means they run with the land forever and are not people specific, but property specific.

As a real estate professional I have heard several wives tales through the years concerning easements that seem to be common misconceptions. One such idea is that an easement can be considered abandoned because of non-use. Just because the benefitting landowner has another access point or they have not used an easement for a long period of time does not mean it is any less valid. The only way it could be expunged is by court action or by the benefitting property owner’s written and recorded decree, thereby legally eliminating the easement.

Another common misconception is that a verbal agreement or continual notorious use of an access makes it legal and perpetual. “I’ve been using this access for years and so it’s grandfathered in,” said one landowner to me. While it may be true that this landowner might have an arguable case for an adverse possession lawsuit (depending upon the time frame of usage and whether it was adverse, open and notorious use), it never happens automatically. It takes a lawsuit and court decision to make such an easement valid and binding, unless the burdened land owner voluntarily grants a legal easement.

In a recent case, a selling land owner expressed concern that the neighbor’s well was on their property and though they had given verbal permission for this encroachment, a proper easement document had never been recorded. Such owners should take action to record such easements in a timely manner since passing that unresolved issue on to the next owner could cause much grief for the benefitted neighbor and possibly create litigation that could come back to bite the seller.