Problems With Easements

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Generally, an easement is a burden or servitude upon a piece of real estate. It is an entry and use of the land by someone other than the property owner. The existence of an easement can encumber a property. This can make it difficult for the property owner to transfer the land by sale or lease to a new owner.

Purpose of an Easement

The purpose of an easement is to allow the holder of the easement rights, such as a utility company, to engage in a certain activity on another person's property. Some common easements include a right of way, the right of taking water and wood, the right of pasture, and the right of flooding land. A solar easement is a right to receive sunlight across real property or for a solar energy system.

Misuse of an Easement

The holder of an easement engages in misuse of their property rights when they exceed the scope of the easement. For example, one type of easement is taking game from a property, but if the holder of the easement enters onto a neighbor’s property to harvest timber, that would exceed the scope of the easement. The extent of an easement is determined by the terms of the grant or the nature of the activity of the person who acquired it.

When an Easement Is Extinguished

An easement is extinguished if the right to the easement and the right to the estate with the easement are vested in the same person. In other words, if the person who holds the easement comes to own the land that is burdened, then the easement disappears. The easement is also extinguished if the land that is burdened is destroyed. This could occur if a sinkhole opens on the burdened property, causing the land to become inaccessible and unusable.

Performance of Incompatible Act

An easement can be extinguished by the performance of an act that is incompatible with the easement’s nature or exercise. The act should be performed either on the burdened estate or the estate next to it, which is the neighboring estate, because that property shares a border with the burdened estate.

In addition, the act may also be performed by the owner of the burdened estate or with the assent of the owner of the burdened estate, which is incompatible with the nature or exercise of the easement. An example would be if the easement holder had a right to enter the burdened estate to get water from a stream. If the owner of the burdened land dams the stream, the easement holder’s right to enter their property is extinguished.

Ceasing to Use Easement as Prescribed

An easement is also extinguished if it was obtained because the holder of the easement used the easement in pleasurable or recreational activities, like fishing, and then stopped using the easement for the period prescribed. For example, if an easement holder had a right to enter a burdened property to fish and then stopped doing so; later, they could not claim they had another reason to enter the estate.

Consequences of Misuse of Easement

When a party misuses an easement, the easement can be extinguished. If an easement holder goes outside the scope of an easement, the property owner may be able to sue them for damages. This depends on what type of damage the easement holder causes when they misuse the easement.

For example, if an easement holder had the right to use a road on the property owner’s estate to access a forest and then damaged the road by dumping a toxic substance on it. The property owner could sue for the cost of cleanup and perhaps also for repair. A property owner may be able to claim damages for nuisance and trespass, as well as damages to any objects on their property. Parties can avoid easement disputes by communicating clearly and as frequently as is needed to maintain the easement.

Maintenance of an Easement

The holder of the easement has the responsibility of maintaining it. In order for the court to not consider the easement abandoned, the holder must exercise their right to access the easement for their particular purpose. State laws do not generally specify how often a holder of an easement must exercise their right to use their easement in order to avoid abandonment. Courts review such concerns on a case-by-case basis.

The owner of the burdened estate has the responsibility of maintaining the burdened property and items on it so as not to destroy the easement. For example, a neighbor might have a right to flood the property owner’s land. If the property owner builds a wall that prevents the neighbor from flooding the burdened estate as is their right, the neighbor could then claim that the property owner of the burdened estate violated the easement.

Blocking an Easement

A property owner who blocks the use of an easement can be sued in civil court by the holder of the easement because the property owner has interfered with the holder’s legal right to use the easement. The easement holder is likely to have recorded the right in county real estate records. A property owner and an easement holder can come to a better easement agreement by having a mediator present during discussions.

Abandonment of a Recorded Easement

The owner of burdened property subject to an easement can bring an action to establish the abandonment of the easement and clear record title of the easement. The property owner should bring the action in the superior court of the county in which the real property subject to the easement is located. An easement is abandoned if no one uses the easement for 20 years prior to the action being brought.

An easement is also abandoned if the county recorder's office does not make a separate property assessment of the easement, and so the recorder's office does not have a record of the easement holder paying for the easement. In addition, an easement is abandoned if the easement holder does not pay taxes on the easement and if there is no written instrument that creates, reserves, transfers or otherwise evidences the easement being recorded.

Cost of Repairs

If an easement is held by multiple people or attached to parcels of land under different ownership, the cost of maintaining it in good repair will be shared by each holder of the easement. To clarify, the property owner of the burdened estate does not bear the responsibility of maintaining the easement. The holders of the easement share the cost of maintaining the easement.

If there is no agreement on the cost of maintenance, the cost will be shared proportionately to the use made of the easement by each holder of the easement. If an easement holder refuses to perform or fails to perform after a demand in writing to pay their cost, the other easement holders may bring an action to recover the unwilling party’s share of the cost.

Other easement holders may bring such an action before, during or after the maintenance work is done. It is a question as to what extent the holders of an easement may enter the property to maintain the easement. Maintaining an easement may involve actions such as cutting limbs off trees or repairing a stone wall. The property owner of the burdened estate and the easement holders should talk to address such issues.