By Sarah Everhart
What Is An Easement?
An easement is a non-possessory interest in the land of another which entitles the easement holder to limited use of another’s land without interference. An easement holder is a person with a legal right to use the easement and may include the owner of the land across which the easement passes. Because the land crossed by the easement is burdened by the easement, it is referred to as the “servient estate.”
An easement is defined by its purpose and each easement must be analyzed to determine why it was granted. Easements are perpetual unless they are limited, or terminated by agreement, abandonment, implication (e.g. necessity ceases to exist), adverse possession, or another means of formal termination. An alternative to the granting of an easement is the granting of a license. In general, a license is personal to the individual who received it, is not transferable, and is freely revocable.
Types of Easements
There are many types of easements but most easements can be broken down into easements by grant, reservation, implication, or prescription.
An express easement is created by an express grant or by reservation in deeds, or by separate documents. An example of an express easement on farmland is a utility easement referenced in a deed, held by either a governmental entity or utility company, which allows the holder of the easement to install, repair, or service utilities within the easement area. A farmland owner needs to fully understand the scope of easements on his or her farmland. For example, a who farmer ignores an easement and plants crops on land burdened by a utility easement risks losing the crops if the area needs to be disturbed by a utility company. Another example would be an express easement held by a homeowner’s association prohibiting the keeping of certain types of livestock.
A reserved easement occurs when one party expressly reserves the right to retain an easement in property being transferred. A common example of a reserved easement is an access easement. For example, a transferring landowner may sell part of his farm but reserve an easement to cross the property to reach a main access road. It is important for the servient landowner to fully consider the potential impact of reserved easements. For example, an access easement may not initially appear to be problematic if the neighboring operation does not involve heavy traffic but if the easement holder later decides to modify their operation to incorporate a Community Supported Agriculture component, the type and intensity of traffic can change dramatically and the burdened landowner will have no legal authority to stop the use.
Easements by implication can be created, through prior use, necessity, or inclusion on a plat. For example, if a person has no other access to a road other than across another’s land, a common law easement by necessity may arise through implication. If an easement is implied based solely on necessity (a landlocked parcel), the easement terminates as soon as the need for it expires (alternate access is acquired). Further, when property is conveyed by reference to lots on a recorded plat, the purchaser acquires an implied easement for the use of the dedicated streets, parks, or other open areas shown on the plat.
Finally, easements by prescription are acquired by continuous, open, and hostile use of the property for a 20-year period. For example, if a farmer crosses his neighbor’s property with harvesting equipment continuously, openly, and without permission for a 20-year period, the farmer may have the basis to claim an easement by prescription to continue the use.
Is Your Farm Land Subject to Easements?
If you are not sure if your farm land is subject to easements, a good place to start is to review the deed to your property and look for any easements or references to the property being subject to easements. ALEI has created a helpful video which explains how to pull the deed to your land from publicly available websites. See: http://www.umaglaw.org/videos.html