An easement is the legal right of a property owner to use another’s land for a special purpose. Unlike a lease or a license, an easement lasts forever, but it does not give the owner the right to sell or improve the land.
There are numerous types of easements which can be used for different purposes either privately or publicly. The most common ones are used for the purpose of running phone, electric or sewer lines as well as water pipes. Most people have one or more of these easements which run across their property. Other types of easements include access over driveways or property in order to reach a public road, access to a well or a water source, or the right to place propane tanks or a dumpster on another’s property, and even the ability to reach one’s front door. Easements can also be used to thwart future development, allow aircraft flight over the land in question, for mining purposes or to use the air space over one’s property.
Many easements are already in place and run with the deed of the property. Historically, phone companies, electric companies, water companies and mining companies were either given or purchased easements for profit or the public good. In fact, most properties in Putnam County still have deeded easements reserved for mining and mineral rights to benefit the heirs of Philip Philipse.
When there is a need for an easement, it may be obtained in a number of ways. One can make an agreement to purchase an easement from another, which is termed “an easement by grant”. However, if an adjoining landowner is not cooperative or open to providing an easement, then one may need to turn to the courts for assistance. Typical litigation involving easements may include an action to obtain an easement by estoppel, an easement by necessity, or an easement by prescription.
An easement by estoppel is a court ordered easement based upon a voluntary servitude such as clearing another’s land in exchange for firewood. The person must believe that the servitude was permanent and that they acted in reasonable reliance on the mistaken belief. If a property is “landlocked” with no access to a road then an easement by necessity may be obtained through the operation of the law. However, one must prove that the adjacent parcels of land had once been joined as one and that it is essential to cross another’s land to gain access to the road. If one had been using a portion of another’s property such as a drive way for a particular purpose only to discover that he had no right to do so, then an easement by prescription may be obtained through the courts. In order to garner this type of easement, one must prove that the use was open (not hidden), adverse (without permission) and continuous over a statutory period of time (ten years in New York).
Of course obtaining an easement through a lawsuit is not a simple procedure, and will most likely be a long and expensive process. Yet if a person finds herself in a position where she must go to court to obtain an easement, then it is recommended that she consult with an experienced legal professional. Simply know that obtaining an easement is not an easy process.