landscape photography of bungalow house - easements

What are easements?

An easement gives a person the right to use the property of another for a specific purpose. When discussing easements, the important consideration is the use of the land and not ownership of the land. The holder of the easement is entitled to occupy the burdened property to the extent necessary to fully enjoy the rights conferred by the easement. The most common easements most people encounter include rights of way, easements for driveways, and easement for utilities.

It is important not to confuse easements with licenses. A license is a permission to do something on the land of the licensor, without granting any interest in the property. This permission is revocable at any time, subject to the will of the licensor. Conversely, an easement is more than just permission and is an actual property interest that cannot be modified or terminated unilaterally by either the easement holder or landowner and can only be terminated in certain situations.

There are two main types of easements, easements appurtenant and easements in gross. Easements appurtenant benefit one parcel of land and burden another parcel of land.  The parcel that is benefited by the easement is referred to as the dominate estate, whereas the burdened parcel is referred to as the servient estate. Such easements run with the land, meaning they are transferred when the property is transferred. They cannot exist separately from the parcel they are attached to. Easements in gross exist for the benefit of a particular person or company. Utility companies often have easements in gross.

Easements can also be either affirmative or negative. An affirmative easement grants the right to do something, whereas a negative easement prevents someone from certain actions. For instance, an affirmative easement would allow a person to cross another’s land to access their own property. An example of a negative easement is a restriction preventing a landowner from building a structure that would block light and air from the property of another.

How are easements created?

There are several ways in which an easement can be created, the most favored under the law being express easements. Express easements are created through a written instrument, whether it be a deed, contract or some other writing. The advantages to these are that the exact location, size and scope of the easement can be clearly described for both the easement holder and landowner.

An easement can also be created by necessity. The party claiming an easement by necessity must show that the easement is necessary for them to use the benefitted property. For example, if a parcel is completely landlocked and surrounded by another parcel, and the owner cannot access their surrounded parcel without crossing the larger parcel, an easement through the necessity can be created to have access to their parcel.

Another way to acquire an easement is by prescription. This is similar to the concept of adverse possession, but results in an easement and right to use of the property instead of an ownership interest. In order to acquire an easement by prescription, a claiming party’s use of the land must be continuous, open, notorious and adverse for a period of fifteen years.

Can easements be terminated?

Easements do not necessarily last forever and can be terminated or extinguished in a number of ways. The simplest and most obvious way an easement can be terminated is by its own terms. If the easement specifies a period or term, the expiration of that period or term will operate to terminate the easement. Easements can also terminate when the easement was created by necessity and the necessity no longer exists. The owner of the dominant estate requiring the easement may also voluntarily release the easement to terminate the easement. Another situation that would terminate an easement is if the same individual acquires both the dominant and servient estates, essentially merging the title of the estates, the easement will be terminated or suspended.  Lastly, an easement can also be abandoned. Proving abandonment is complicated because mere nonuse does not constitute abandonment, there needs to be a manifested intent to abandon an easement.

Easements are important property interests, and when there is misuse or interference with easements, disputes over the easement can be complicated. Knowing and understanding your rights and obligations regarding easements is important when involved in such disputes. With years of experience in real estate matters handing easement disagreements, our office is well equipped to assist you in any easement dispute you may have. Please contact the Law Office of Kathryn M. Wayne-Spindler at (248) 676-1000 to discuss your easement issues today. The attorneys at Kathryn Wayne-Spindler & Associates are experienced attorneys who change with the times to meet the needs of their clients.  Contact the Milford, Michigan law office of Kathryn Wayne-Spindler & Associates at 248-676-1000 for assistance. The attorneys of Kathryn Wayne-Spindler & Associates practice law throughout Southeastern Michigan including Oakland, Wayne, WashtenawGenesee and Livingston counties as well as four mid-Michigan counties ClareGladwinOgemaw and Roscommon. The attorneys handle cases in Milford; Highland; Hartland; White LakeWixom; Commerce; Walled Lake; Waterford; West Bloomfield; Linden; Fenton; Flint; Grand Blanc; Holly; South Lyon; New Hudson; Howell; Clare; Gladwin; Houghton Lake; Higgins Lake; and many more Michigan communities.