How Real Estate Easements Are Created
Learn the legal ins and outs of passing through your neighbor's land
Real estate easements represent the right of one party to use part of the land of another for a specific purpose. Generally, real estate easements transfer with the ownership of the property. Easements that transfer with a property are said to "run with the land." There are many reasons why one entity might want or need to use the real property of another. As such, there are many ways that easements can be created.
Easements by agreement occur when one owner of a property needs to use part of his neighbor's property. Suppose, for example, two owners of adjoining parcels of land share a road on the property of one of the owners to access a main highway. An agreement might be created to set out how the costs of maintaining the road would be shared. The terms would also set up an easement for the owner who needs to pass through his neighbor's property to do so unrestricted.
Easements by conveyance are included in property deeds. For example, continuing the right-of-way example above, say a landowner sells the back 20 acres of his 40-acre plot, and the 20-acre plot does not have public road access. The seller can include language in the deed that conveys, or gives, the new owners of the lot access a road through his plot so they can reach to the main road unrestricted.
Closely related to the deed example above, suppose a piece of property exists with no access to a public roadway due to surrounding properties owned by others. However the situation may have been created in the first place, most states recognize that a property owner has a right to be able to enter and exit his property – called the right of ingress and egress. In this case, a court may issue an order creating an easement by necessity allowing the owner of the property with no access to cross the neighboring properties unrestricted.
Though the owner of a property might disagree strongly with the "public good" statement, the government might condemn a property or portion of a property under the laws of eminent domain to use it for a public project. An example would be easement by condemnation of a strip of a property for a new highway.
Suppose a property owner, whether or not he has access to his property by another way, chooses to create a driveway across the property of another and uses it exclusively to enter his property.
The length of time a person can use another's property before claiming the legal right to use it varies among the states, but after a certain number of years, the owner who created the driveway might be able to claim an easement by prescription. Generally, for this to happen, the use of the property must have been without the permission of its owner, but visible and open to the knowledge of the owner. Thus, by not stopping the access, the owner could be forced to allow the easement by prescription. The original landowner of the driveway would then need to legally terminate the easement in order to stop the person using the driveway.