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A nonpossessory (incorporeal) property interest (short of an estate) that one person (the benefited party) has in land owned by another (the burdened party), entitling the holder of the interest to limited use or enjoyment of the other’s land. An easement fulfills the needs of one property at the expense of another.

Because an easement is an actual interest in land, the statute of frauds applies and an express grant of easement must be in writing, usually in the form of a separate deed or a reservation in a deed. Thus, an easement is an interest in land rather than a mere contractual agreement. Easements are also created by necessity (as in landlocked situations), by implication, or by prescription.
Because the easement is both a benefit to the holder and a burden to the servient property owner, it significantly affects the value of the respective properties and the extent of the easement should be clearly understood. Most easements originate by express grant, so the drafter should clearly express the rights and duties associated with the easement. An easement can be an affirmative easement, such as a right-of-way to cross the property, or a negative easement, such as a restriction on fence height. It can also be created for different periods of time—for a term of months, years or for life.

Easements are classified as either appurtenant or in gross. An easement appurtenant is a right in another’s land (servient estate) that benefits and attaches to the owner’s land (dominant estate). An easement in gross is personal in nature and does not pass with the land because it does not benefit or attach to a dominant estate.

Litigation involving easements usually results from the initial failure to adequately define the easement area (the floating easement problem), the uses to which it may be put, or which party has responsibility for repair and upkeep. An easement for access purposes might not be appropriate for later use to lay utility lines to the property. When an easement or right-of-way is located by a grant that does not define its specific width, such width is assumed to be one that is suitable and convenient for ordinary, free passage.

Easements should not be confused with profits or licenses. A profit is the right to take the soil, minerals, or products of the land. A license is not an interest in land, merely permission to use the land of another for some limited purpose; it can be revoked at any time.
Easements may be terminated in six ways:
1. Merger: When the owner of the dominant estate becomes the owner of the servient estate.
2. Abandonment: Mere nonuse is insufficient cause, as there must be clear acts showing intent to abandon, such as the owner of the dominant estate erecting a fence across his or her easement right-of-way.
3. Release: When the owner of the dominant estate releases his or her interest, usually by means of a quitclaim deed affecting the servient estate.
4. Purpose: When an easement has been created for a particular purpose and that purpose ceases.
5. Operation by law: When the easement is taken by eminent domain or is lost by adverse possession.
6. Overburdening: When the grantee makes use of the easement for an improper purpose.

An easement cannot be terminated due to an inconvenience or hardship experienced because the owner of the servient tenement cannot develop the property without added expense. The owner of the servient tenement cannot relocate the easement simply to suit personal needs—to do so would be, in essence, a private right of eminent domain.
Dearborn Real Estate Education
This "Word of the day" is excerpted from The Language of Real Estate, 6th Edition by John Reilly (published by Dearborn Real Estate Education, 2006 copyright). To purchase the complete book, with over 2800 key terms and definitions, or to browse through Dearborn's hundreds of other professional real estate titles, including Real Estate Technology Guide by Klein, Barnett, Reilly, click here.