Handling Easement Disputes

Unless you own an entire island, your real estate sits next to someone else’s property. You have to share a border with them. While for many, this isn’t impactful on land use and enjoyment, there are times when there can be some overlap. There can also be times when someone needs to access and use their neighbor’s property. This overlap can lead to boundary disputes and the need for easements.

What Is an Easement on My Property?

An easement is a non-ownership legal right to use someone else’s property for a specific purpose. The purpose of an easement can vary from utility service access, right of way, shared property line driveways, and more. Easement rights can be expressly created or established through consistent use over a long period of time.

Ryan D. Yahne, a real estate attorney in Spokane, Washington, for the Piskel Yahne Kovarik, PLLC law firm, explains how an easement works. “An access easement, for example, is usually written in such a way that it attaches to the land and runs with the land—so, it’s essentially supposed to be forever with subsequent owners on both sides. Both owners have to abide by the easement, so that’s why it’s important that it shows up on title reports and so people know what they’re buying”

What Are Common Types of Easements?

Several types of easements are available to address different types of usage needs. The types are defined by how they are created and the specific purpose they serve. 

Utility Easements

Property owners do not have a lot of power or say when utility easements get created. With this type of easement, the utility company has the right to access your property to maintain and monitor utility infrastructure. Examples of this would include telecommunication cables, water pipes, or electrical. To terminate this type of easement, you would have to effectively prove in good faith that the utility company shouldn’t be able to access its infrastructure on your property. The good news is that the majority of utility easements do not impact your day-to-day use and enjoyment of your property.

Prescriptive Easements

Sometimes, easements are made over long periods of time. A prescriptive easement is similar to adverse possession. A party creates usage rights through long-term usage. While they are technically trespassing, their open, continuous, and uninterrupted use over many years creates the easement. The property owner where the easement is also needed to know or should have been able to know through the visible and notorious use. If the owner is aware of the use and makes attempts to stop the use, this will prevent the easement from forming. 

Easement by Necessity

There are some situations where an easement is necessary. A common example of this type of easement is when there is no access to a piece of property. The easement is the only solution for creating access to the property. Because the landlocked property owner has no other choice but to use the neighbor’s private road, the private road owner cannot deny the neighbor access or use.

These types of easements only last for as long as the necessity is present. So, in this example, if a public road gets built later that gives the neighbor access, then the easement to the private road ends. It doesn’t matter if the public road is inconvenient. The important point is that the necessity is no longer present because there is an alternative access point to the person’s property.

Easement Appurtenant

Private easements and easement appurtenants are similar because they both arise out of necessity. They both give specific individuals defined usage rights of the property adjoining theirs. The difference between a private easement and an easement appurtenant is that an appurtenant attaches to the land. So, if someone purchases real estate, the easement continues to be in effect.

Easement in Gross

Unlike the other types of easements, an easement in gross doesn’t require a dominant estate. This type of easement doesn’t run with the land, so you can remove the easement if you buy a property with this type of easement. An example could be an easement that gives a company the right to put up a billboard.

Express Easements

An express easement is an agreement between two parties that intentionally creates it. For it to be valid, it must be in writing and last for more than one year. The agreement should clearly define the parcel of land the easement covers and the specific use rights the party can enjoy.

Conservation Easement 

A conservation easement is a specialty type of easement that some states use. It is similar to eminent domain in that the government claims a portion of land for use in the interest of the public. For example, Florida uses conservation easements to limit the development of property. The goal is to protect a portion of land to maintain its natural state.  By preventing the overdevelopment of land, Florida preserves the as agricultural, historical, cultural, or archeological of its natural landscape.

Can a Property Owner Block an Easement?

Generally, a property owner cannot unilaterally block an easement to prevent other people from using the easement. Once an easement is formed, there is a legal right to use it. So, by blocking the easement, you are violating the other party’s legal rights. However, there are situations where a property could rightfully block an easement. For example, if another party is attempting to create a prescriptive easement that isn’t legally established or documented, a property owner could prevent the easement formation.

If you want to block an easement on your property, speak with a real estate attorney first. A lawyer can help you understand your property rights. Otherwise, you could risk facing a lawsuit for damages. Yahne explains that a property owner cannot interfere with another’s right to use an easement. “A valid easement is a bona fide property right. If you have an access easement, then you have the right to use it. So the property owner can’t do anything to prevent your use.”

How Can I Terminate or Modify an Existing Easement?

There are several methods for terminating an easement. The simplest method is to include a termination date in the easement’s original origination documents.

Abandonment or Prescription

A third option is to terminate the easement through abandonment or prescription. The easement holder can terminate it through abandonment. Simply stop doing the action that the easement gives you the right to do. For example, if the easement gives you the right to drive across the neighbor’s property, stop driving over their property. The property owner where the easement is located can terminate the easement through prescription. You can do this by preventing the other party from using their easement rights.

Continuing our example, you can stop the neighbor from driving over your property by putting up a fence to block them. However, a property owner cannot unilaterally terminate an easement by obstructing the other party’s access. This can result in legal action brought by the party with the right to use the easement. In both abandonment and prescription, the party must act in a way that shows intent to terminate the easement. Once they meet this requirement, they can file the easement termination with the county clerk.

Agreement Termination Term

The easement documents could include a specific date. It could also include a fact or status, such as one party no longer needing the easement. Once you have the date or terminating factor, you need to record the easement termination so that it becomes part of the permanent record. This puts the world on notice that the easement is no longer in effect. You would make this recording with the county clerk where the real estate is located.

Agreement

Another option is to agree to terminate the easement. The party using and depending on the easement will release their right to use the real estate to the owner of the property. It is best to get this agreement in writing to avoid future conflict. File the termination with the clerk of court.

Yahne explains how friendly communication can be a solution for removing an unwanted easement. “Walk over to your neighbor’s house and say, ‘Hey friend, can we agree to a termination of the easement?’ You reference the easement question, you get it agreed to by both property owners, and then you record it. That will usually terminate the use, and you’re good to go.”

Destruction

An easement can be terminated when an outside force or party destroys the property that houses it. A fence shared by two properties is an example of this. The easement terminates when the fence is destroyed.

Forfeiture

A property owner can pursue forfeiture of the easement if the party benefitting from the easement oversteps their rights. Typically, this includes putting an excessive burden on the property owner granting the easement. If you feel like this is happening with your easement, a real estate lawyer can give you legal advice. The standard for forfeiture can vary from state to state and is often vague.

Merger

A merger automatically terminates an easement because a single party cannot have an easement across two pieces of their own real estate. So, a merger happens when one of the neighbors buys the other’s property, bringing the two separate parcels into one larger parcel. Even though the easement automatically terminates, you should still file an easement termination. This puts it on the official record that you own both properties, and the easement is no longer enforceable.

Recording Act

You may be able to successfully terminate an easement through a claim under the Recording Act. The act protects buyers of real estate that has an easement that isn’t properly recorded. The buyer can’t have had actual knowledge or know of facts that would lead a reasonable person to believe there might be an easement.

How Can I Resolve an Easement Dispute With a Neighbor?

The simplest solution for resolving easement disputes is to have a conversation with your neighbor. Open and honest communication, where you work through your disagreement, will give you the best chance for everyone to reach an agreement with which they can be happy. In addition, you own real estate that shares a border with their property. As neighbors, you don’t have to be friends, but having a cordial relationship makes for a better ownership experience.

If you cannot resolve the issue on your own, it may be time to speak with a real estate attorney. Your attorney can discuss possible next steps, such as sending official notices or filing a lawsuit. Your claim will likely go through alternative dispute resolution, such as mediation. A neutral third party will help you and the other party negotiate an agreement. If this process fails to result in a resolution, the final option is to go through litigation. Your attorney will prepare your case for trial and present your argument before a judge. The judge will make a ruling based on the evidence and arguments. The parties then must abide by the ruling.

Find Experienced Legal Help

Real estate law can impact all areas of property ownership, from buying and selling to living on and enjoying. Easements are an essential part of property ownership because they create usage rights for neighbors. Because an easement is a legal right, you must abide by them. Speaking with an experienced real estate attorney can help you navigate your easement, from enforcing it to terminating it.

Visit the Super Lawyers directory to begin your search for an experienced real estate attorney. For more information, read our guide on real estate law.