Easement: Your Right to Use Someone’s Property
Tum’s land is adjacent to the river that serves the community in his village. He often gets irritated by the noisy villagers who come to draw water and sometimes steal maize from his farm. The path to the river is almost at the centre of his land, and he cannot really fence off his land and leave out the path.
Emomeri Maryanne
A right of way (ROW) is an easement that allows a person who is not an owner of the said property to pass through it. In the case above, the community has a right of way to access the river. But they don’t have a right to the owner’s maize farm.
What is an Easement?
An easement is the right to use another person’s land for a specific stated purpose. With an easement, the owner retains the land as his own. Some examples are easements for power or telephone lines.
How Easements are created
Expressed easements: These are created through a written agreement between the property owners. Both parties sign the agreement and the easement is specified in both deeds.
Implied easements: These are not written down and are therefore not specified in the deed. It can be implied by necessity.
- Necessity easements: those that are put in place out of necessity. An example of such is when a property owner sells his backyard and has to provide a right of way to the new owner through his property.
Prescriptive easements: These are also not written down. They are acquired when a user uses a path often for too long, and the path ends up creating a legal easement.
Types of Easements
There are different types of easements and different countries apply different laws on easements.
The main types of easements include:
- Appurtenant Easement
An appurtenant easement is one that benefits the land. If the servient owner (one who gives the easement) sells the land to someone else, or the dominant owner (one who benefits from the easement) sells the land, the easement rights are automatically transferred to the new owners. In short, this type of easement is between lands and not between the people who own them.
- Easement in Gross
With this type of easement, the right is attached to a specific person. The easement right cannot be passed on to another owner. Most of the easements in gross actually allow the servient owner to be compensated. A good example of this is the signal boosters put up in people’s properties by different mobile phone service providers.
In the example above the easement interfere with the owner's property rights, since some of the villagers steal from the property. The owner is free to seek legal redress.
