Introduction To Easements

Posted on Feb 1, 2022 by Kevin Vance

An easement is, simply put, a right to enter or otherwise use someone else’s land for a specified purpose.  Stated another way, but with slightly more pretention for effect; an easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it.  As you might imagine, merely labeling something an “easement” is akin to defining your primary transportation as a “car” – useful for eliminating options like “helicopter” and “dinghy”, but ultimately unhelpful if your aim is to understand how property owners’ rights are impacted by such an arrangement.  So, to that end, this article seeks only to introduce the most basic concepts involved in recognizing easements and how they operate.

By and large, the only person who may grant (or remove) an easement is the owner of the land, and only an owner in fee simple may grant a permanent easement.  Once recorded, such easements are said to “run with the land,” meaning that subsequent owners of the affected property are subject to the easement.  By contrast, an owner holding something less than fee simple – such as a life estate – may grant an easement lasting only for the time during which their estate exists.

In broad strokes, an easement can be classified as either “appurtenant,” or “in gross.”  An easement appurtenant is intended to benefit another parcel, while an easement in gross benefits the owner of the easement rather than a parcel of land.  Easements in gross can be difficult to recognize and may only become obvious through the conduct of the parties.  They are generally less common than easements appurtenant though, and this article primarily addresses the latter.

Further, every easement appurtenant has both a dominant and servient estate (easements in gross have no dominant estate).  More specifically, easements (appurtenant) include (a) land which is benefited by the easement (the dominant estate); and (b) land which is burdened by the easement (the servient estate).  A common example, and an easy way to describe the interaction of the estates, is the ubiquitous utility easement.  Here, a utility company (be it telephone, electric, cable tv, etc.) will have an easement across the property to which their service is delivered.  That easement will follow the path of the service line and permit entry onto the property for repair and maintenance.  The land owner, in this case, is the servient estate holder because, even though they rightfully own the property, their possessory right is still subject to the right of the utility company enter onto the property.

Another common example, at least in the commercial space, is a reciprocal easement agreement, commonly abbreviated as “REA.”  These are used to establish the legal rights to shared areas between two or more property owners, typically by private owners of adjoining land or businesses that share an area such as a large parking lot for a shopping plaza.  Using the example of a joint driveway, each adjoining land owner would hold both a dominant estate, where the easement lies over the neighboring owner’s portion of the driveway, and a servient estate where the driveway and easement lies over their own property.

To be sure, this is not the forum for an exhaustive dissertation on the topic – even the most cursory internet search would provide a list of reading material that would itself be longer than this article.  However, should you want a more in-depth analysis I recommend beginning with an article by the Texas A&M Real Estate Center uploaded here; TexasLawHelp.Org.