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 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
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
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