Types of Easements in Real Property
A comprehensive guide to property easements: appurtenant, in gross, prescriptive, by necessity, conservation, and utility easements. How each type is created, terminated, and identified through title examination.
What Is a Property Easement?
A property easement is a nonpossessory interest in real property that grants the holder a limited right to use or restrict the use of land owned by another party. The holder of an easement (the benefitted party) acquires the right to use the land for a specified purpose without acquiring ownership. The property owner (the burdened party) retains title but must permit the authorized use. Easements are recorded instruments that run with the land, meaning they remain in effect regardless of changes in property ownership, unless specifically terminated.
Easements are classified by two fundamental distinctions: (1) whether the easement benefits a parcel of land (easement appurtenant) or a specific person or entity (easement in gross), and (2) whether the easement was created with the owner’s consent (express easement) or without it (prescriptive easement, easement by implication, or easement by necessity). Recorded easements are identified through a professional title report search. The Expanded Title Search ($375) from U.S. Title Records includes dedicated easement research for any property in all 3,250+ recording jurisdictions across all 50 states.
Dominant Estate vs. Servient Estate
In an easement appurtenant, the property that benefits from the easement is the “dominant estate” (or dominant tenement). The property burdened by the easement is the “servient estate” (or servient tenement). The easement attaches to the land itself and transfers automatically when either property is conveyed to a new owner. Courts in most jurisdictions presume an easement is appurtenant rather than in gross unless the instrument creating the easement expressly states otherwise.
Affirmative vs. Negative Easements
An affirmative easement grants the holder the right to perform a specific action on the servient property (e.g., to cross the land, install utilities, or access water). A negative easement restricts the servient owner from performing a specific action on their own property (e.g., prohibiting construction that would obstruct a view or block light). Negative easements are generally disfavored by courts and are permitted only in limited circumstances, typically for light, air, support, and conservation purposes.
Types of Property Easements Explained
Each easement type, how it is created, its transferability, and its effect on real property
Easement Appurtenant
An easement appurtenant benefits a specific parcel of land (the dominant estate) and burdens an adjacent parcel (the servient estate). The easement runs with the land and transfers automatically when either property is conveyed. The most common easement appurtenant is a right-of-way granting ingress and egress across a neighboring parcel to access a public road. Shared driveways, drainage easements between adjacent parcels, and access to landlocked property are common examples. An easement appurtenant cannot exist without both a dominant and servient estate.
Easement in Gross
An easement in gross benefits a specific person or entity rather than a parcel of land. There is no dominant estate. The servient estate is still burdened, but the benefit belongs to the holder personally. Utility easements are the most common form: electric, gas, water, sewer, cable, and telecommunications companies hold easements in gross to install, maintain, and access infrastructure on private property. Commercial easements in gross are generally transferable. Personal easements in gross (such as a right to fish or swim on another’s property) typically terminate upon the death of the holder and are not transferable.
Prescriptive Easement
A prescriptive easement arises from the open, notorious, adverse, continuous, and uninterrupted use of another’s property for a statutory period without the owner’s permission. The statutory period varies by state (typically 5 to 20 years). Unlike adverse possession, a prescriptive easement does not transfer title. It only grants the right to continue the established use. Prescriptive easements are not recorded instruments and will not appear in a standard title examination. They can only be established or confirmed through court proceedings. Common examples include paths, driveways, and access points used without permission for decades.
Easement by Necessity
An easement by necessity arises when a parcel of land is landlocked (has no access to a public road) and was at one time part of a larger tract that did have access. Courts imply an easement by necessity across the servient parcel to provide the landlocked parcel with reasonable access. The easement exists only as long as the necessity exists. If the landlocked property later gains independent access, the easement by necessity terminates. This type of easement does not require a written instrument and may not appear in county recorder records. A professional land survey and title examination can identify the conditions creating an easement by necessity.
Conservation Easement
A conservation easement permanently restricts development on a parcel to protect natural resources, open space, agricultural land, or historical features. The property owner grants the easement to a qualified land trust or government agency, which holds the right to enforce the restrictions in perpetuity. Conservation easements are recorded instruments that run with the land. They can significantly reduce property value (by limiting development potential) but may provide substantial federal and state income tax deductions and estate tax benefits. The Expanded Title Search ($375) identifies recorded conservation easements affecting the subject property.
Utility Easement
Utility easements grant electric, gas, water, sewer, cable, and telecommunications companies the right to install, maintain, and access infrastructure on private property. They are typically easements in gross (benefiting the utility company, not a neighboring parcel). Utility easements are often established during subdivision development and recorded on the subdivision plat map. They may also be created by separate recorded instrument. Utility easements restrict the property owner from building structures, planting trees, or making improvements within the easement area. Contact the local utility company or review the property’s title report to identify existing utility easements.
Easement by Implication (Prior Use)
An easement by implication arises when a property is divided into two or more parcels and the prior use of one parcel for the benefit of another was apparent, continuous, and reasonably necessary at the time of division. Unlike an express easement, an implied easement is not created by a written instrument. Courts examine the intent of the parties at the time of the property division and the nature of the prior use. Implied easements may not appear in county recorder records, making professional title examination and land survey essential for identification.
Express Easement (By Grant or Reservation)
An express easement is created by a written instrument (deed, separate easement agreement, or subdivision plat) and recorded with the county recorder. It is the most clearly defined type of easement because the terms, scope, and location are specified in the recorded document. Express easements can be created two ways: by grant (the property owner conveys the easement to another) or by reservation (the property owner conveys the property but reserves an easement for their own continued use). When searching for recorded easements, examine both “grants” and “reservations” in deeds, as easement reservations may appear in instruments not titled “easement.”
How Easements Are Created and Terminated
Five methods of creation and six methods of termination
Creation by Express Grant
The property owner executes a written instrument (deed or easement agreement) granting the easement to another party. The instrument is recorded with the county recorder, providing constructive notice to all subsequent purchasers. This is the most common and clearly defined method of easement creation.
Creation by Reservation
When a property owner conveys the property, they reserve an easement in the deed for their own continued use. The reservation language appears in the body of the conveyance deed. Always examine the full text of deeds during title examination, not just the instrument title, as reservations may not be obvious.
Creation by Prescription
Prescriptive easements arise through open, notorious, adverse, continuous, and uninterrupted use for the statutory period (varies by state: 5-20 years). No written instrument exists. Prescriptive easements must be confirmed through court proceedings and do not appear in county recorder records until a court order is recorded.
Termination by Release
The easement holder executes a written release or quitclaim deed, which is recorded with the county recorder. This is the most common method of voluntary termination. After recording, the easement no longer encumbers the servient estate.
Termination by Merger
If the dominant and servient estates come under common ownership, the easement is extinguished by merger. An owner cannot hold an easement on their own property. If the properties are later separated, the easement does not automatically revive.
Termination by Abandonment
An easement may be terminated if the holder demonstrates clear intent to abandon, typically accompanied by non-use for an extended period. Non-use alone is generally insufficient. Courts require evidence of the holder’s intent never to use the easement again.
Property Easement Questions
Authoritative answers regarding easements, their effect on title, and how to identify them
How Do I Find Out If There Are Easements on a Property?
Recorded easements are identified through a professional title examination. The Expanded Title Search ($375) from U.S. Title Records includes dedicated easement and restrictive covenant research as part of the comprehensive examination. Standard title report searches ($29-$375) identify easements that appear in the chain of conveyance but do not include dedicated easement research. For properties in subdivisions, easements may also appear on the recorded plat map filed with the county recorder. Prescriptive and implied easements do not appear in recorded instruments and require a professional land survey to identify.
Do Easements Transfer When Property Is Sold?
Easements appurtenant run with the land and transfer automatically when either the dominant or servient estate is conveyed to a new owner. The new owner of the servient estate must honor the easement, and the new owner of the dominant estate receives the easement benefit. Easements in gross may or may not transfer depending on whether they are commercial or personal. Commercial easements in gross (utility easements) are generally transferable. Personal easements in gross typically terminate upon the death of the holder. All recorded easements should be disclosed before any real estate transaction. A preliminary title report documents all recorded easements for buyer review.
How Do Easements Affect Property Value?
The effect of an easement on property value depends on the type, scope, and location of the easement. Utility easements along property boundaries typically have minimal impact. Access easements crossing the center of a buildable lot can reduce value significantly by limiting development potential. Conservation easements permanently restrict development and can substantially reduce market value, though they provide federal and state tax benefits. Buyers should identify all easements before purchasing through a title examination with easement research ($375) to evaluate their impact on intended property use.
What Is the Difference Between an Easement and a Right-of-Way?
A right-of-way is a specific type of easement that grants the right to travel across another’s property. All rights-of-way are easements, but not all easements are rights-of-way. Easements can authorize a wide range of uses: utility installation, drainage, conservation restrictions, view preservation, and access to water. A right-of-way specifically authorizes passage. In practice, the terms are often used interchangeably in recorded instruments, particularly in older deeds. A deed examination reveals the specific language defining the scope of the granted right.
Can a Property Owner Remove an Easement?
Easements can be terminated through: release (the easement holder executes a quitclaim deed), merger (dominant and servient estates come under common ownership), abandonment (clear intent to abandon plus non-use), expiration (if the easement was created for a specific term), condemnation (government takes the servient estate through eminent domain), or estoppel (the servient owner reasonably relies on the holder’s representations that the easement will not be enforced). Prescriptive easements may also be challenged if the statutory requirements were not fully met. Removing an easement typically requires agreement of the easement holder or a court order.
How Much Does an Easement Search Cost?
The Expanded Title Search ($375) from U.S. Title Records includes dedicated easement and restrictive covenant research as part of a comprehensive title examination. This report covers all recorded easements, the complete chain of conveyance with copies of vesting instruments, all encumbrances, and flood zone verification. Standard title reports ($29-$375) identify easements visible in the chain of title but do not include dedicated easement research. All reports cover any property in all 3,250+ recording jurisdictions across all 50 states. No account or subscription required. For asset investigation, visit U.S. Asset Records.
Search for Easements on Any Property
The Expanded Title Search ($375) includes dedicated easement research, complete chain of conveyance, and full encumbrance examination for any property in all 50 states.