It is a complex area with some difficult terms to understand. Here is some basic information about easements on property.

An Easement Explained

An easement is a property right that provides its holder with a non-possessory interest on another person’s land. This doesn’t mean that the person holding the easement can occupy the land; neither does it mean that others are excluded from the land unless they attempt to get in the way of the easement holder using the property. On the other hand, the person who owns the land can keep using the easement and has the right to exclude anyone apart from the person holding the easement from the land.

Land burdened or affected by an easement is referred to as a “servient estate.” The person or the land that benefits from the easement is referred to as the “dominant estate.” “Appurtenant is the term used to describe any area of land that benefits from the easement. If there are only personal individual benefits from an easement the term used is “in gross.”

The majority of easements are affirmative, this means that they authorise the use of another person’s land. Negative easements are not as common, they typically involve preserving an individual’s access to view or light by putting a limit on what can be done on a nearby or neighbouring property.

How is an Easement Created?

Easements are typically created in a written communication such as a contract or a will, or by conveyance in a deed. To create an easement, the same process is required for the creation or transfer of any other land interest; this is generally through a signature, a written agent and the proper distribution of the document. There are a few instances where the court will create the easement by implying that it exists as a result of the circumstances. Common examples include easements made from quasi-easements and easements of necessity.

An easement of necessity is generally created so that a landlocked section of property has access to it. An easement created from a quasi-easement is based on a landowner’s previous use of a section of their property for the benefit of a certain part of the land. There are several other methods of creating an easement; these include condemnation, public trust, custom, estoppel and prescriptive use.