Understanding an Express Easement

Association of Construction and Development
May 21, 2012 — 1,875 views  

Easement is a legal term that makes up a niche portion of property law, though it may be applied in other industries as well. Essentially, easement legislation governs the use of private land by a person or company other than the property's owner. Express easements are particularly specific, as they apply only to situations where a will or deed contains a written clause governing the use of property after transferring ownership to a new party. Understanding the following types of easements is critical to comprehending the impact this legislation can have on a business.

1.) Easement Appurtenant versus Easement in Gross - An easement appurtenant applies to two pieces of land, which are referred to as the dominant and servient tenement. These two properties are treated in conjunction with one another and apply to the property even if ownership changes. Justia lists an example where a homeowner has to cross a neighbor's property to get the the beach - the agreement will still stand even if both parties decide to sell their homes.

In contrast, an easement in gross refers to the owners rather than the land itself. Like an easement appurtenant, old agreements still stand upon new ownership, but the difference between the two is that no new easements can be transferred without express consent of the new owner.

2.) Affirmative and Negative Easements - An affirmative easement is like the beach crossing situation described above - it requires property owners to allow certain actions to occur on their property. A negative easement is the opposite - this prohibits certain actions from being performed on a property, and legal consequences are often specifically outlined in the language of negative easements.

3.) Express versus Implied Easements - Express easements are unlike other easements because they must be explicitly defined in writing. These are normally created by a deed or will, but can also be requested by the owner when land is transferred due to a sale or other action. Again, an implied easement is different - this is a non-written, verbal agreement where property use is implied and not intrinsically defined. However, certain requirements like land splitting must be met for an easement to qualify as implied.

4.) Other Easements - Conservation easements are just one example of specific easements governing actions such as environmental land development. For every type of action that can affect a property, there is likely an easement that defines these possibilities.

Association of Construction and Development