Real estate attorney discussing an easement agreement with client

What’s an Easement?

Whether you’re new to property or an established homeowner or investor, you’ve probably heard of easements and that they’re important. Even if you’re familiar with easements from a practical perspective, how well do you understand the legal side? An easement is a complex area of property law that is neither intuitive nor simple. This blog will explain the basics of easements to help you better understand them.

What is an Easement?

Easements are the legal right to use another’s property for certain purposes and in a certain manner. It’s important to understand that it is a right of use – it is not an interest in the land. This means that ownership of the property and easements are independent. An important implication of this is that easements can transfer from one party to another. Additionally, the beneficiary can be a property, and therefore benefit the property’s owner, or the beneficiary can be an individual, such as is the case with easements often granted to utility companies.

For example, if Tom’s property has an expressly granted easement to cross Beth’s property, and Tom sells his property, then the buyer of Tom’s property will also acquire it to cross Beth’s property. Easements are created by one of several methods:

  • Express Grant. An easement can be granted by express writing. In the example above, Beth and Tom could have executed an easement agreement allowing Tom to cross Beth’s property.
  • Prescription. An easement can be created through repetitive use. If Tom had consistently crossed Beth’s property for a required amount of time without an express grant, Tom may have created a prescriptive easement that has the same enforceability as an express grant.
  • Implication. An easement can be created by implication where the easement is necessary for the continuing use of a property. For example, if Tom decides to subdivide his property and sell the back lot (which has no road access), an easement allowing the back lot to cross the front lot to access the road would likely be implied.
  • Condemnation. An easement can be created through the public process of condemnation, where the government determines that the right to use a property parcel is necessary for the public benefit. 

How are Easements Terminated?

Easements are commonly terminated by mutual agreement, abandonment, or “unity of title” (a common term for two or more properties having the same owner). In the above example of Tom and Beth, it could be terminated in the following ways:

  • Mutual Agreement. Tom and Beth could agree that Tom will no longer cross Beth’s property and thus execute an agreement terminating the easement. 
  • Abandonment.  If Tom stopped using the easement to cross Beth’s property for an extended period of time, it may be considered terminated.
  • Unity of Title. Also referred to as “merger” this would occur if Tom or Beth became the sole owner of both properties. At this point, the easement would terminate as it would be unnecessary.

Real Estate Lawyers Serving Augusta, Georgia

At Klosinski Overstreet, we understand the intricacies of easements and have counseled numerous landowners and investors regarding easements and drafted various types of agreements. If you have questions relating to a property easement, please contact our office today to schedule a consultation.