An easement is a right held by one person to use the land of another for a specific purpose, such as access to other property.
In talking about an easement, you will hear the term ingress, which means to enter, and egress, which means to exit.
An appurtenant easement involves two properties, owned by two different owners. The two properties involved are called dominant and servient.
When you are not sure about which is which, just think about what the two words mean.
Dominant - they are dominating, they are in charge.
Servient - they are serving, so the servient tenement is serving the dominant tenement's purpose.
In more tangible terms, the dominant tenement is walking over the servient tenement.
Thinking this way may be confusing sometimes, as the dominant tenement's property is typically smaller than the servient tenement's property.
For example, your property can be landlocked, which means that it has no direct access to a public road. So to access your property from a public road, you must cross someone else's property.
That is property is now serving your purpose and is the servient tenement in an appurtenant easement.
The easement will continue after you and your neighbor sell your properties to other owners. An easement appurtenant attaches itself to a piece of property. It's said to run with the land, which means that whenever the property is sold, the new owner has the same rights to use the easement that the old owner had.
Under the statute of frauds law, which exists in some fashion in every state, easements must be in writing to be valid.
Easements in gross
Another type of easement is called an easement in gross.
An easement in gross has no dominant tenement. Although there is property being crossed, there is no property to go to.
Typical easements in gross are utility easements. For example, the electric company wants to connect a line between two poles. They need to cross your property to do this. That would be an easement in gross.
Easements by necessity
A court order creates an easement by necessity to permit someone to gain access to a property. For example, say Property Owner A sells Buyer B a back portion of land but neglects to give Buyer B an easement for access. If A then refuses to give B the easement, B can go to court and get it by court order- an easement appurtenant.
Easements by prescription
An easement by prescription is an easement that is created by the actions of one person against the interests of another person. An example may help explain this type of easement: every night when your neighbor Joe comes home, he drives his car across a corner of your property. The reason doesn't matter; he simply does it. You see him do it and never stop him, and he does it for a long time. Eventually, you get tired of him driving across your property and tell him to stop, but he says, "No way, I've got an easement by prescription." Joe takes the matter to court, and the court agrees with him. Joe now has a permanent easement by prescription across your property. Easement by prescription requires a court order as a result of a lawsuit.
The fact that Joe's actions had persisted for a long period of time came into play; the length of time varies according to which state you're in. You saw Joe cross your property. His use was open and what lawyers call "notorious", meaning it wasn't hidden. In a sense, by not telling Joe to stop sooner, you gave him silent permission to use your property.
How to end easements
Easements can be terminated in several ways, including:
- An agreement or release: The person who possesses the easement (dominant tenement) agrees to give it up or release the person across whose property the easement exists (servient tenement) from the obligation.
- By merger: A has an easement to cross B's property. B buys A's property. The easement disappears, as you would not need an easement across your own property.
- By abandonment: Say you had a driveway easement to some country property that you visit regularly, and for one reason or another, you stop going to the property. Unlike a dog, when you abandon an easement it will cease to exist. (On a side note, rescue a dog, please!)
- The need no longer exists: The need for the easement may no longer exist.
Usually some form of court action is needed to terminate an easement, unless the two parties agree, in which case some form of legal document agreeing to the termination of the easement needs to be executed and recorded.
Learn more about the types of easements that will come up on your exam: