An easement is a legal right that allows someone (the ‘easement holder’) to use or access a specific portion of another person’s property (the ‘servient land’) for a particular purpose. This right is typically permanent and continues even if ownership of the land changes hands.
Easements can arise in various situations, such as granting access to a neighbouring property, allowing utility companies to install and maintain services, or enabling rights of way for pedestrian or vehicular traffic, for example.
How are Easements Created?
There is a variety of ways that easements are created. Easements are obtained for different reasons, and this is what dictates how they’re created. Here are some of the ways easements are created:
By grant: to obtain an easement by grant, the owner of the servient land simply gives the easement to the owner of the dominant land. A granted easement is often made in writing in the form of a will or deed to ensure its legitimacy.
By reservation: easements by reservation are made when one party makes the other aware that they intend to retain an easement in a new property they’re moving in to. If an easement already exists and someone becomes the new dominant land owner, they reserve the right to retain the easement. This must be done with a deed or will.
By necessity: this is where it must be absolutely necessary for the easement to be created. For example, if the land is inaccessible without the easement, then you would need an easement by necessity.
By prescription: easements can be claimed by an individual after they’ve used the land for 20 years or more. This use must be enjoyed as a right which was used without force, secrecy and permission.
Implications of an Easement for Property Owners
If you discover an easement on your property, it’s important you understand the implications:
Restricted use: an easement may restrict your ability to use or develop certain parts of your land covered by the easement. For example, if a utility company holds an easement, you may be limited in building structures or landscaping in that area.
Maintenance obligations: as the owner of the servient land, you may have responsibilities regarding the upkeep of the easement area. This can include maintaining access roads, ensuring clear pathways, or allowing periodic inspections by the easement holder.
Property value: easements can influence property values. While some easements may have little impact, others, such as a right of way for a commercial development, could affect the desirability and marketability of your property.
Can I Block an Easement?
Physically blocking an easement can cause a lot of issues, such as finding yourself subject to an action for private nuisance. Legally, you cannot block an easement that has already been granted.