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An easement is the right of use over the real property of another. Historically it was limited to the right of way and rights over flowing waters. Traditionally it was a right that could only attach to an adjacent land and was for the benefit of all, not a specific person. The right is often described as the right to use the land of another for a special purpose. It is distinguished from a license that only gives one a personal privilege to do something on the land of another usually the right to pass over the property.
Easements may be considered public or private. A private easement is limited to a specific individual such as the owner of an adjoining land. A public easement is one that grants the right to a large group of individuals or to the public in general, such as the easement on public streets and highways or of the right to navigate a river.
Easements include:
- Aviation easement. The right to use the airspace above a specified altitude for aviation purposes.
- Storm drain easements. These carry rainwater to a river or other body of water.
- Sanitary sewer easements. These carry used water to a sewage treatment plant.
- Electrical power easements.
- Telephone easements.
- Sidewalk easements. Usually sidewalks are in the right-of-way, but sometimes they are on the lot.
- Driveway easements, also known as easement of access. A few lots do not border a road, so an easement through another lot must be provided for access. Sometimes adjacent lots have "mutual" driveways that both lot owners share to access garages in the backyard. The houses are so close together that there can only be a single driveway to both backyards. The same can also be the case for walkways to the backyard: the houses are so close together that there is only a single walkway between the houses and the walkway is shared. Even when the walkway is wide enough, easements may exist to allow for access to the roof and other parts of the house close to a lot boundary.
Restrictive Easement
A restrictive easement is a condition placed on land by its owner or by government that in some way limits its use, usually regarding the types of structures which may be built there or what may be done with the ground itself. For instance, if a leased piece of land is not precluded by zoning laws (probably because it is not in a township) from having people inhabit it, and the government feels that for some reason living there would be especially unsafe, it may place a restrictive easement on the property stating that no one may live there. Restrictive easements are also frequently placed on wetlands to prevent them from being destroyed by development.
Easements by Prescription
Easements by prescription, also called prescriptive easements, are easements that
arise even though they are not expressly created or recorded. It is similar to adverse possession, however prescriptive easements do not convey the title to the property in question, only the right to utilize the property for a particular purpose and often require less strict requirements of proof, and generally needs not be hostile.
Easements by prescription generally hold the same legal weight as written easements. Easement by prescription is typically found in legal systems based on common law, although other legal systems may also allow easement by prescription.
Laws and regulations vary among local and national governments, but some traits are
common to most prescription laws. Generally, the use must be open, actual, and continuous. Unlike adverse possession, prescriptive easements typically do not require exclusivity and may or may not be hostile. Some jurisdictions also require that the use be notorious.
If the use is hostile, the period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws. In some jurisdictions, if the use is not hostile but given actual or implied consent by the property owner, the prescriptive easement may become binding immediately.
Government owned property held for common use is generally immune from prescriptive easement in most cases, but some other types of government owned property may be subject to prescription in certain instances.
Right of way for access is among most common easement by prescription.
Easement in gross
An easement that is attached to an individual person or legal entity rather than a parcel
of real estate. This easement is personal in nature. In earlier times easements in gross were considered neither assignable nor inheritable, but today, most courts hold that easements in fee can be assignable in some circumstances. Even so, this type of easement does not automatically carry-over to subsequent property owners like easements in fee. Easements in gross typically cannot develop into easements by prescription even if they meet all other use requirements.
Torrens Title
Under the Torrens Title system of land ownership registration, easements and mortgages are recorded on the titles kept in the central Land Title Registry.
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