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Identifying the Type and Form of an Easement is Critical in Evaluating Obligations and Rights
April 30, 2019

By Armand Resto-Spotts

Easements are one of the most common—and often misunderstood—real property interests in law.  Whether you benefit from an easement, your property is burdened by one, or you were led to believe you had an easement right, or maybe another individual or entity is asserting a right to use your property in some manner—easements can arise and exist in many shapes, forms, and circumstances.
 
To accurately determine your obligations and rights given an easement, it is critical to understand how the easement was created, the specific purpose(s) and scope of the easement right, and how that legal interest would operate in practice.
 
Types of Easements
 
In its simplest form, an easement is a nonpossessory interest in the land of another entitling the easement holder to use of the other's land.  An easement grants the holder many rights concerning the use and benefit of another property, but it lacks the most critical element of property ownership: possession.  Accordingly, when dealing with easement issues, there are inevitably two (or more) distinct, but equally important parties and interests to consider in assessing respective rights and obligations.  The easement holder is often referred to as the grantee, benefitting party or property, or the dominant estate.  The property subject to the easement right is often referred to as the grantor, burdened party or property, or the servient estate. 
 
Easements can be appurtenant—a nonpossessory interest concerning two or more parcels that is incident to the ownership of a particular tract—or in gross—a nonpossessory interest that benefits the easement holder independent of ownership or possession of a particular piece of land.  A good example of an appurtenant easement is the classic ingress and egress access road, a drainage easement, or even a view easement.  Easements in gross are less common, but the most obvious example would be utilities that run over, under, or across a particular piece of property.
 
Further, easements can be affirmative—authorizing certain activity over the burdened property—or negative—prohibiting certain activity on the burdened property.  Easements may also come in the form of a right-of-way, which is effectively a "broader" easement right, granting the public generally the nonpossessory interest to, for example, pass through a piece of land along a public road, or as specifically provided for under state law in Oregon, to access the beach. 
 
Knowing what type of easement you are dealing with can directly impact your respective rights and obligations within that legal relationship.  For example, whether an individual can unilaterally convey an easement interest may depend on how that easement is classified under law.  Similarly, the mechanism to terminate or abandon an easement interest may be different depending on what type of easement right you are dealing with.
 
The type of easement benefitting or burdening your property can also significantly impact your property value.  Easements can provide critical links to utilities and rights of access to the property itself or nearby features adjacent to your property.  But easements can also limit rights of development and full use and enjoyment of the property.  Understanding what types of easements your property benefits from and is burdened with is critical to assessing the ultimate value and use of your property.
 
Form of Easements
 
Equally important in assessing the legal implications of an easement right is how the easement was created. 
 
Easements can be created by express grant between the parties.  This is the classical example of a stand-alone easement agreement or contract.  Easements may also be created through reservation in a separate conveyance of property.  Typically, deeds conveying property will include language like "subject to" or "reserve for" to indicate that an easement either exists on the property being conveyed, or the party conveying the property is reserving an easement for itself, or possibly another party. 
 
The language employed in granting or reserving an easement is critical.  It defines the purposes of the easement, the terms of use, duration, location, and other specific details related to the interest at issue.  For instance, which parties or persons can benefit from the easement?  Can the easement holder exclude others from using the easement area?  Does the easement right include an express right to repair or maintain the easement area?
 
In contrast to express grants, easements may be created by implication, which do not necessarily include "language" granting or reserving an easement at all.  An easement may arise by implication in several instances, such as conveyance of lots previously comprising a single parcel, land-locked property needed access, or by "prescription."  A prescriptive easement is created by continuous use of a certain property for a specific purpose over a period of time.  In Washington, to establish a prescriptive easement, a claimant must use the property open and notoriously, adverse to the burdened owner's interest, continuously for a 10-year statutory period.
 
After defining the type and form of the easement at issue, one can accurately assess the limitations, obligations, and rights associated with the easement.  Unfortunately, easements are rarely created in such a clean fashion; rather, the language is often unclear, the parties' original intent for the easement is long forgotten, or there was no legal relationship at all until one party begins asserting the right under operation of law. 
 
Armand Resto-Spotts is an attorney at Jordan Ramis PC who focuses his practice on land use, real estate, and environmental law. Contact him at armand.resto-spotts@jordanramis.com or (360) 567-3900.
 
Thank you for your interest in this blog. The information contained in this blog is for the general interest of our readers and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact an attorney in our land use and zoning practice group.
 



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