Easements and Servitudes

EASEMENTS AND SERVITUDES

Overview

An easement is a non-possessory interest held by one party in another party’s land. Easements are granted for limited use purposes, such as a right-of-way, ingress/egress, parking, utility lines, encroachments, lateral support, historic preservation, conservation, etc. The property favored by an easement is called the “benefited” or “dominant” parcel, and the property upon which an easement is granted is called the “burdened” or “servient” parcel.

An easement may be granted in favor of a particular parcel, in which case it is called “appurtenant.” Alternately, an easement may be granted generally for a specific use, but not benefiting a specific parcel, in which case it is called “in gross.” Appurtenant easements run with the land, which is to say that when the benefited parcel is conveyed, the easement rights running in its favor are also conveyed. Easements in gross are typically non-transferable, although there are certain exceptions to this rule, usually in the commercial context. Additionally, easements in gross are personal interests, and are therefore usually not considered to be interests in land.

Easements can be used to both extend and limit rights. An easement will either grant a specific right or use to the beneficial holder, or, in the case of a “negative” easement, may prohibit the owner of the burdened parcel from using their land in certain ways. For example, a “view easement” is a form of negative easement that prohibits the owner of a burdened parcel from blocking the benefited parcel’s view. When insuring easement interests, be certain that the easement is being used for an appropriate purpose, and that it is not being misused or overburdened (expanded).

Easements typically are specifically defined as a limited area. For example, in the case of a utility easement, the easement will commonly state its precise boundaries in the form of a legal description. In limited cases, a “blanket” or “floating” easement may be granted, which covers a significant portion, if not all, of the burdened parcel. The intent is usually to grant a blanket easement because precise placement is at that time undetermined, and to later revise the easement to reflect its precise placement and boundaries. However, in some cases, the blanket easement is not revised, and the burdened parcel remains significantly or completely burdened.

Easements are created in one of three different ways: express easements, implied easements, or prescriptive easements. 1. Express easements are intentional creations, through either a grant or reservation of easement. Express easements can be created by grant in a deed, by a separate agreement unto itself, by dedication in a plat, by declaration (usually along with covenants, conditions and restrictions), by condemnation, or by statute (to name a few). 2. Implied easements arise out of the apparent intent of the parties. These most frequently take the form of an “easement by necessity,” which results when a property owner sells off portions of a larger parcel, which sales result in a landlocked parcel. The easement by necessity is created for access when no express easement for access has been granted or reserved. In other circumstances, a property owner may allow access over (or under) their property, without granting an easement. Where such permissive use is reasonably not limited to a licensed use, or is of a permanent nature, an implied easement may arise. 3. Prescriptive easements are created in a process analogous to adverse possession. They arise when a presumptive easement holder has made use of the burdened parcel for a certain statutory term of years, and otherwise satisfied the statutory scheme. Prescriptive easements may also be considered hostile implied easements, and like adversely possessed property, require a court’s agreement to become binding. The statutory scheme differs from state to state, so there are no uniform standards to prescriptive easements.

Easements are not necessarily permanent, as they can be terminated in a number of ways. These include termination by agreement, release, expiration, abandonment, merger, foreclosure by a prior non- consenting interest holder, changed circumstances, adverse possession, condemnation, etc. Exercise caution when terminated easements appear in the chain of title, and be certain that any release or termination was properly granted or obtained.

Premises To Be Insured Are Subject To Easement

Easements may be imposed in deeds or other instruments in the chain of title, and by delineation upon a recorded plat. Every such easement imposition must be made an exception to the policy even though the one on a plat and one imposed by instrument appear to be identical. Easement rights may also be acquired by usage, and thus where a plat of survey shows pole line rights of way or other easements marked thereon, these also should be made an exception in the title policy (see also manual section entitled “Possession Exception”). However, if the easement on the individual plat of survey is identical to that imposed by instrument or by a recorded plat, you may omit any reference to the easement shown on the survey or identify the recorded easement as being the same as that shown on the survey.

It is common for an easement to be created in Covenants and Conditions already referred to in Schedule B. You should still set out any such easement as a separate exception such as follows:

An easement is reserved over the rear five feet of said land for utility purposes and maintenance by the instrument referred to in paragraph _____ of Schedule B of this policy.

The usual easements upon properties are for public utilities above the surface or through underground conduits, joint driveways or drainage, sewerage, water, and gas lines. These are generally acceptable exceptions so long as the rights under the easements do not interfere with any of the improvements located on the insured property or, if they are underground, they do not extend under any of the improvements on the property.

If the easement is an unusual type, such as a high pressure gas transmission line, it might render the title unacceptable to lending agencies and should be cleared with the lender before closing or the issuance of the title policy. The exception to easements in the policy should state the nature of the easement and its location either by express statement or by reference to a plat of survey furnished. Examples follow.

Easement – General Reservation

An easement over the __(describe location)__ feet of said land __ (set forth purpose of easement)__ as reserved by ______in deed recorded in Book ______of ______Page ______.

Easement – General Grant

An easement over the ---(describe location)__ of said land for ___(describe purpose of easement)__ as granted to ______in deed recorded in Book______of ______Page______.

Easement – Location Indeterminate

An easement ___(location not disclosed)___ for__(set forth purposes)__ as reserved (or granted) by ______in deed recorded in Book______, of ______Page______.

Easement – Common Driveway

An easement for common driveway over the ______feet of said land to be used in conjunction with the ______feet of the land adjoining on the ______, as created by ______(or as granted to ______by deed) dated ______, recorded ______in Book ______of ______Page______.

Easement – Reserved on Map or Plat or Shown on Surveyor’s Plat

An easement over the ______feet of said land __(describe purpose of easement)__ as shown upon __(the recorded plat of subdivision or plat of survey) dated ______made by ______.

Easement – Disclosed by Inspection

Possible easement for __(set forth purpose i.e. "pole line," "road," "pathway," spur track," etc.)__ which exists over __(describe location)__ of said land as disclosed by inspection.

Easement – Streets and Roads

Rights of the public and others entitled thereto to use for street (or highway, or road) purposes that portion of the premises lying within ______street (or highway, or road).

Premises To Be Insured Include An Appurtenant Easement

If a parcel of land is being insured, an easement over adjacent land for stated purposes may also be insured. Title to the easement premises must also be examined up to the point of easement grant. Any liens and encumbrances on the easement tract must be shown in Schedule B. Grant of the easement must be executed by all the owners of the easement premises and any other party with an interest, such as lienholders, to be effective.

When insuring an appurtenant easement, in Schedule A you must show the parcel benefitted by the easement as Parcel 1 and show the easement tract, i.e. the tract over which the easement runs, as Parcel 2. An example follows:

Easement for the benefit of Parcel 1 as created by (the type of instrument which constitutes the easement grant) dated ______and recorded ______in Book ______at page ______for (state the purpose of the easement) over, under and across the land described as follows: (here describe the easement premises).

If the instrument creating the easement contains any conditions or limitations, then in Schedule B, an exception must be shown as follows:

Terms, provisions and conditions as set forth in __(the type of instrument which constitutes the easement grant)__ dated ______and recorded ______in Book ______at page ______.