The claim was successful even though the fencing was temporary and an alternative route had been provided. The remedies which a dominant landowner may have for interference with an easement include:. It is important to note that even easements which have not been exercised for years generally remain enforceable unless they have been positively terminated. Courts are reluctant to treat an easement as having been abandoned unless the dominant landowner has demonstrated a positive intention to permanently give up the right.
Developers should tread very carefully before taking any steps which may constitute interference with an easement. Legal advice should be sought at an early stage to assess the risk of enforcement action being taken.
In addition, developers should always consider alternatives to interfering with an easement such as whether the development can be undertaken so as to accommodate the easement. Where a developer hopes to rely on an easement for the benefit of a proposed development, such as a right of access or a right to lay services, it is crucial to ensure the scope of the easement is sufficient for the intended use.
The fact that the land already benefits from an existing easement is not necessarily the end of the matter. An easement cannot be used in a manner which exceeds the original purpose for which it was granted.
Developers must exercise particular caution where a change of use is proposed in connection with the development, as there is a high chance this may undermine the ability to rely on existing easements. Whether use of an easement is excessive depends on the nature, purpose and amount of the use. The relevant legal test is whether the proposed use by the dominant landowner will substantially increase the burden on the servient land. A radical change in the use of the dominant land, such as from agricultural use to a large residential development, will often result in the use of an existing easement being deemed excessive.
The legal principles in this area are still evolving and each case will turn on its own facts. In the case Gore v Naheed, the Court of Appeal diluted the long established rule that an owner of two neighbouring plots cannot rely on a right of way granted for the benefit of one plot as a means to access the second plot.
Where there is a dispute concerning the scope of an existing easement, the servient landowner may bring a claim for trespass as well as claiming injunctive relief.
It is therefore important to assess the scope of existing easements from the outset to ascertain the risk of the development becoming the subject of a dispute. In cases where the proposed development site does not have the benefit of any existing easements, the developer may need to take a new easement over third party land in order to provide access or services to the development site.
Where a new easement is required, thorough title due diligence should be carried out as early as possible to check for any potential obstacles which may hinder the grant of the easement. These may include:. If you would like advice and assistance regarding the above article, please call us on and ask to speak to our Commercial Property Team or email info leathesprior. Note : The content of this article is for general information only and does not constitute legal advice.
Specific legal advice should be taken in any particular circumstance. Tel : Fax : Email : info leathesprior.
Make a payment info leathesprior. Commercial Property. Criminal Defence. Data Protection. Debt Recovery. Any private easement referred to in your property papers should have a reference number, such as a book and page number.
Your county clerk can help you locate it in the public records and obtain a copy to keep with your deed. Even if it isn't written down, a legal easement can exist if it's absolutely necessary to cross someone's land for a legitimate purpose. The law grants people a right of access to their homes, for example. So if the only access to a piece of land is by crossing through your property, the law recognizes an easement allowing access over your land.
This is called an "easement by necessity. Someone can acquire an easement over another's land for a particular purpose such as accessing their own home by using someone else's property openly and continuously for a set period of time. This is called a prescriptive easement, and typically one is created when someone uses land for access, such as a driveway or beach path or shortcut.
The length of use required for a prescriptive easement varies from state to state and is often the same ten or 20 years as for adverse possession which is when someone acquires legal ownership of land by occupying it. While prescriptive easements and adverse possession might be the same in terms of length of use required, there are important differences.
For example, payment of property taxes is not necessary for a successful prescriptive easement claim, while some states require a trespasser to pay property taxes to obtain legal ownership.
Also, to acquire a prescriptive easement, a trespasser does not need to be the only one using the land. More than one person can acquire a prescriptive easement in the same portion of land—an example would be a driveway on another's land or a path people use as a shortcut.
If you don't mind someone using part of your property but don't want that person to gain the legal right to do so, the simplest way to prevent a prescriptive easement is to grant the person written permission to use the property.
For example, if your neighbor is parking his car on a small strip of your property and you give him permission to do so, your neighbor is no longer a trespasser, and he can't claim an easement by prescription. Giving permission to a current user also prevents people who move in later from claiming that they inherited a prescriptive easement. To find your state's law on prescriptive easements, look up "easements" in the index to your state statutes.
To understand how the courts in your state have interpreted different requirements, you might also want to check your state's court decisions on prescriptive easements.
As a property owner, you may not interfere with the purpose of a legal easement. If, for example, the electric company has wires strung across its right of way, you cannot take them down or block their path.
If you interfere with an easement, you could end up liable to the easement owner for damage and be subject to a court action ordering you to stop. If you find yourself in a dispute over an easement, or if you feel someone is illegally trespassing on your property—for example you are a new homeowner who just discovered that your neighbor is using what you believe is a private drive for access to her own property—see an experienced local real estate attorney.
The laws on easements vary from state to state, and you will probably need tailormade advice for your situation. It's especially important to consult with an experienced real estate attorney if there is nothing in writing for example, in a deed or title papers about the easement. The legal doctrines of unwritten easements that are created by people's actions and certain circumstances can be complicated, and you'll want advice from someone experienced in your state's real estate law and up to date on relevant court decisions.
The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. Thus, if a landowner acquires another practicable means of ingress and egress, or if the landowner acquires an adjoining lot with a practicable means of ingress and egress, the easement implied by necessity will terminated.
Parham v. Reddick, So. An easement can also be terminated if the servient estate is sold to a bona fide purchaser without knowledge, actual or constructive, of the easement. Wise v. Quina, So. For this reason, it is very important for the easement holder to promptly record an express easement in the official public records in the county where the property is located so as to provide constructive knowledge to the world of the existence of the easement.
Sometimes disputes arise regarding the use of an easement. While an easement carries with it, by implication, the right to do what is reasonably necessary for the full enjoyment of the easement, the easement is restricted to the purposes for which it was granted. Sinclair v. Clay Elec. Co-op, Inc. For example, in one case, the Florida Supreme Court held that an easement for drainage could not later be used for installation of large-scale irrigation equipment. Crutchfield v. Sebring Realty Co.
Further, while the property owner whose property is subject to the easement retains the right to use the land in any manner not inconsistent with the easement, the property owner cannot unreasonably interfere with the rights of the easement holder. For example, where an express easement provided for fifty feet wide access, the property owner could not install a wall over a portion of the easement, even though the easement holder still had twenty feet for access.
See Diefenderfer v. Forest Park Springs, So. Where a dispute regarding an easement cannot be resolved, legal action can be brought to adjudicate the rights of the parties involved. The types of actions that may be able to be brought in court could include actions for injunctive relief to require compliance with the easement or to remove obstructions or take other actions regarding the easement, breach of contract for breach of express easements where damages may be available, declaratory judgment regarding the existence or scope of an easement, or quiet title regarding the existence or non-existence of an easement.
Jimerson James O. Calhoun A. Hunter Faulkner Austin T. Hamilton C. Ryan Maloney Brandon C. Fox Gregory J. Lesak, Jr. Joseph R. Luna Lynne C.
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