Posted December 9, 2013 by advocateguru in Learning Centre
 
 

Easements

An easement is a certain right to use the real property of another without possessing it. It is “best typified in the right of way which one landowner, A, may enjoy over the land of another, B.” It is similar to real covenants and equitable servitude ; in the United States, the restatement(third) of property takes steps to merge these concepts as servitudes.

Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond. An easement is considered as a property right in itself a common law and is still treated as a type of property in most jurisdictions.

The rights of an easement holder vary substantially among jurisdictions. Historically, the common law courts would enforce only four types of easement:

  1. Right of way (easements of way)
  2. Easements of support (pertaining to excavations)
  3. Easements of “light and air”
  4. Rights pertaining to artificial waterways

Modern courts recognize more varieties of easements, but these original categories still form the foundation of easement law

Affirmative and negative easements

An affirmative easement is the right to use another’s property for a specific purpose, while a negative easement is the right to prevent another from performing an otherwise lawful activity on their property.

For example, an affirmative easement might allow land owner A to drive his cattle over the land of B. A has an affirmative easement from B.

Conversely, a negative easement might restrict B from blocking A’s mountain view by putting up a wall of trees. A has a negative easement from B.


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