Baldwin & Briscoe P.C.
301-862-4400
22335 Exploration Drive Ste. 2030
Lexington Park, MD 20653
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Easement Litigation

          The attorneys at Baldwin & Briscoe, P.C. have handled many easement cases over the years.  Easements are important because they affect how an owner may access or use their property.  They also create a burden on the property over which they cross.  It is easy to see how one person’s right to use another’s property may be the source of contention between the parties.

        An easement is a non-possessory right in the property of another.  Often the term easement is synonymous with the term right-of-way.  An easement allows a person to legally cross over or otherwise use or burden the property of another person without asking for permission.  An easement however, does not allow the easement owner to occupy the property or exclude others from the property.  Those rights are reserved to the owner of the property, sometimes referred to the as the fee owner, the fee-simple owner or the servient owner.

        The servient parcel is the property across which an easement crosses.  The dominant parcel is the property which the easement benefits.  An easement which benefits a particular parcel is said to be appurtenant to that land.  An easement which is specific to a person, and not tiled to a dominant parcel is called an easement in gross.  An easement appurtenant will pass with the title of the dominant parcel.  This allows the buyer to use the easement in the same manner as the seller did.  An easement in gross is generally unaffected by who holds title to the property.  Utility easements are a typical example of an easement in appurtenant.

        There are numerous types of easement that are recognized under Maryland law.  These include right of way easements, utility easements, drainage easements, conservation easements, solar easements, sewer easements and driveway easements. 

        Easements can be created in various ways.  An express easement is one that is created by grant, which is a deed, from one person allowing another an easement in their property.  Easements can also be created by reservation.  This generally occurs when a property owner subdivides a parcel into two or more smaller parcels by selling one, but retaining a right to cross it to access the others.

        In addition to an express grant or reservation, an easement can be created through litigation.  Easements created through litigation generally fall into three categories: necessity, prescription and implication.

·         Easement by Necessity.  An easement by necessity arises when a parcel of property is subdivided in a way that one of the newly created portions does not have access to a public road or right-of-way.  The court will grant an easement by necessity if it is reasonably necessary for the fair use and enjoyment of the property that does not have access to the public road.

·         Easement by Prescription.  An easement by prescription arises when an individual makes adverse, continuous and hostile use of a right-of-way over the property of another for a period of twenty years.  The element of hostility does not necessarily imply enmity or ill will; it simply means that the person using the right-of-way has not obtained permission from the owner. 

·         Easement by Implication.  An easement by implication arises when a property is subdivided.  An Easement by Necessity (described above) is actually a type of Easement by Implication.  An Easement by Implication is created when surrounding circumstances indicate that the grantor must have intended that he would be allowed to continue to cross over the property conveyed even after of the property. 

       In addition to litigation concerning whether an easement exists, sometimes parties litigate issues concerning the scope and rules surrounding an existing easement.  It is not always clear what a party who has an easement is permitted to do within the easement.  The party using the easement may create a burden on the underlying property.  Sometimes issues concerning whether the party using the easement has created an undue burden.  For example, if an easement is granted for access to a parcel of property used as a residence, but then the owner wants to develop the property for a commercial purpose, the new use might create an undue burden.

 The courts can provide remedies pertaining to the use of an easement including injunctions and declaratory relief in which the court sets the rules for the use of the easement.  The court can also award monetary damages where the use of an easement exceeds the scope of the easement or where the owner of the servient property interferes with the use of the easement.

 Easements can be affirmative or negative.  Most easements are affirmative easements, meaning that they permit someone to do something on another’s property.  A negative easement is a restriction on one’s property.  A scenic easement which prevents a party from creating a structure that blocks another’s view is a type of negative easement.  Negative easements can also protect a property owners right to sunlight, thus prohibiting a neighboring owner from constructing a structure which blocks the light.

           If you have questions concerning an existing easement, or find yourself in a dispute with a neighboring property owner, the attorneys at Baldwin & Briscoe will be happy to meet with you and discuss your options and develop a strategy to meet your objectives. 

           The information contained on this page is provided as general information and does not constitute legal advice.  The experienced attorneys at Baldwin & Briscoe, P.C. can assist you with many types of property litigation, including easement issues.  We’d be happy to sit down with you and review your situation and provide appropriate advice.  Call today for a no-obligation consultation.  A consultation fee may apply.

 

The Law Offices of Baldwin & Briscoe, P.C. also offers these services:

Bankruptcy and ForeclosureBusiness LawCivil LitigationCriminal DefenseEmployment, Disability, and Consumer RightsFamily LawGovernment Contracts LawIntellectual Property, Personal InjuryReal Estate, Social Security Disability & Workers’ Compensation and Wills, Trusts, & Estates

 

 

Contact Us

The Law Offices of Baldwin, Briscoe & Steinmetz, P.C.

22335 Exploration Drive

Suite 2030

Lexington Park, MD 20653

301-862-4400 Phone

301-862-3009 Fax

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Our Attorneys

Samuel C.P. Baldwin, Jr., Esq.

Janice Briscoe, Esq.

Richard J. Steinmetz Jr., Esq.

David J. Hebb, Esq.

Sandra Kaufman Jonasen, Esq.


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With an office conveniently located in Lexington Park, The Law Offices of Baldwin, Briscoe & Stienmetz, P.C. serves clients in the counties and cities of Lexington Park, Leonardtown, Hollywood, Mechanicsville, Loveville, Helen, Breton Bay, Chaptico, Charlotte Hall, Golden Beach, Avenue, La Plata, Waldorf, Newburg, Port Tobacco, Port Charles, Solomons Island, Prince Frederick, Chesapeake Shores, Hughesville, Benedict, Nanjemoy, Lusby, Port Republic, St. Mary's County, Charles County, Calvert County, Prince George's County, Southern Maryland.


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