An easement is a real estate ownership right (an “encumbrance on the title”) granted to an individual or entity to make a limited, but typically indefinite, use of the land of another. If you own land, a house, or commercial property and have external utility service, such as electricity, water, or gas, there is frequently an easement on your property, at least to the meter. If there is a driveway or road from a public road crossing your land to a house or field behind your land, this access may be an easement. It is not a right of occupancy as such or a right to profit from the land. It is legally considered an “incorporeal” (not physical) right. An easement that benefits adjoining property, such as a driveway, is termed an “appurtenant easement.” An easement that does not benefit a particular tract of land, such as a gas transmission pipeline, is termed an “easement in gross.” A “license” is a form of limited revocable permission to use property (for example, enter a theater and view a film). A “lease” allows a tenant a temporary exclusive right of occupancy (for example, an apartment).
An easement may be recorded in the public real estate records or other regulatory agency records; however, an easement may exist without recordation. Therefore, it is necessary to carefully physically inspect the land in question to determine if there are easements. A significant legal issue in sales and usage questions is whether or not the landowner knew or should have known of the existence of the easement. This may be critical in real estate development and construction projects.
Easement owners have a legal right to maintain the easement and have a legal right of access across the easement. An easement owner’s removal of trees, limbs, and fences may be controversial, but these actions are usually lawful. However, one should always review the original documents that granted the easement since there may be specific provisions.
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