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Easements - Often Useful, Sometimes Surprising.

When buying or selling property, you will inevitably have to deal with easements and how they impact your property.  Whether something as simple as a driveway right-of-way or as subjective as a view easement, easements can have a dramatic impact on your property’s value and utility.


Easements As Distinguished From Other Rights.

As common as easements are, they are not the only means by which someone can have an interest in your property without actually owning the property.


An easement is a grant of permission to the easement owner to use, or prevent use of, the owner’s real property. However, unlike a license, the easement grants the easement holder an interest in the property that encumbers the title. Unless it is otherwise specified, an easement is presumed to be permanent and non-exclusive, meaning that others may be able to use it (e.g., a driveway or water line). 


A license gives the permission of the property owner to an individual or an entity to use property for a specific purpose. Unlike a lease, it does not transfer an interest in the real property. It is personal to the licensee and any attempt to transfer the license terminates it. It is (usually) revocable, meaning the property owner can terminate it at will, and a license can be either exclusive or non- exclusive.


A lease is an agreement in which the landlord agrees to give the tenant the exclusive right to occupy real property, usually for a specific term and, in exchange, the tenant agrees to give the landlord some sort of consideration. A lease transfers to the tenant a leasehold interest in the real property and, unless otherwise provided in the lease, a lease is transferable and irrevocable.


A covenant sets rules for future title holders of a property as to what they may or may not do on the property.  Where an easement can be called a person’s interest in another one’s land for some specific purpose, a covenant just concerns the appropriate use of land (e.g., requiring trees along a boundary, prohibiting mobile homes or livestock). Unlike covenants, easements can be obtained through usage over a set period of time.  When an easement establishes a certain property right, a covenant calls for a benefit and burden to a property.  Finally, where an easement can be termed as an interest in real estate which is presumed to be permanent, a covenant is more akin to a contractual obligation, which is not binding upon future owners unless it is so specifically stated.


Finally, and not terribly commonly found in Vermont by this term, a profit is the right to a lawful but limited use of another's property when there is no dominant tenement (directly benefitted property).  An example would be where a utility company has the right to construct and maintain a powerline over another’s land: the benefit to the utility company is economic, not to directly benefit any land held by the company.


How Is An Easement Granted?

While we most typically encounter easements in written documents (e.g., deeds, declarations), easements can be created by means other than written grants.  In those instances, it is important to understand how and when an easement may be created, as well as how you may preclude such an easement from coming about.


An express easement is, as the name suggests, an explicit grant, either within a conveyance document or as a stand-alone document, of a non-title interest in property.  This may be personal, temporary, permanent, etc.  If the description of the scope of the easement is specific, it will be strictly enforced by the courts; otherwise, the easement will be broadly enforced to best effectuate the intended use of the easement.


A prescriptive easement is the acquisition of a non-title interest in property by use over time.  Much like the legal doctrine of adverse possession, the use must be for a term of not less than fifteen years and must be done in an open and obvious manner to place the rightful property owner on notice of your conduct.  One difference between a prescriptive easement and acquiring title by adverse possession, however, is that your use of the easement does not need to be hostile, i.e., to the exclusion of others; one only needs to be hostile to the title owner of the property.


An implied easement typically comes into play with subdivided properties and easements for utilities or the means of ingress and egress from the properties.  It requires: 1) the unity and subsequent separation of property title; 2) the apparent or obvious benefit to the dominant property (property claiming easement) and an obvious burden to the servient portion of the property (property subject to the easement); 3) the use of the property by the common owner of the properties in the altered fashion long enough before the conveyance to show the change was intended to be permanent; and 4) the easement is of strict necessity.   The idea here is that a conveyance is granting what is existing at the time of conveyance, unless stated otherwise, and thus any easement existing at the time of the conveyance can be implied where it is not expressly set forth in the conveyance documents.


An easement by necessity is created where the division and transfer of commonly owned lands results in a parcel or parcels without access to a public road.  This results in an easement of necessity over the lands of the common grantor (property owner) or his successors in title.  The purpose is to preclude the creation of parcels which have no ready means of access to public roads and thus are likely to be unused (i.e., landlocked).  This easement remains in place until a public roadway is available for accessing the land.


This information has been provided as a matter of general education and does not constitute legally-binding advice or guidance.  As with any question involving real property, your best resource is your real estate attorney.  Since all situations and legal circumstances are unique, please do not hesitate to contact the Law Office of Richard J. Fox PLLC if you have any questions.

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