by Stephen C. Gregory*
WHAT IS AN EASEMENT?
An easement is an incorporeal hereditament, a privilege without profit, which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person, by reason whereof the latter is obliged to suffer, or refrain from doing something on his own tenement for the advantage of the former. 6B M.J. EASEMENTS § 2 (Aren't you glad you asked?) Translated in English, then, an easement is the privilege to use the land of another in a particular manner and for a particular purpose. A few comments about the nature of an easement merit emphasis.
1. It is not subject to the will of the possessor of the land.
2. It entitles the owner of the interest to limited use of the land, free from interference.
3. It is an extraordinary interest of the owner of the interest.
4. It is created by forms of conveyance, or other means, although imposing an easement on land is not a severance of the legal title.
5. It is a property right rather than a mere contract right. By VIRGINIA CODE §55-50, it also passes with the land.
CORPORAL WHO? I HAVE A FEELING THERE ARE MORE LEGAL TERMS I NEED TO KNOW, BUT HAVEN'T THOUGHT ABOUT SINCE THE BAR EXAM. SO, LET'S HAVE THEM.
For now, there's the dominant tenement - that's the landowner who has the right to use the land of another - and the servient tenement, the land that is "burdened" with the easement. Think of them as the dominatrix (the one with the whip) and the servant, who does her bidding (or else). (Although the terms "easement" and "right of way" are often used synonymously, they are not technically the same. A right of way is a right of passage over the land of another: it is a type of easement. An easement for ingress and egress could be referred to as a right of way, by the way.)
There will be more as we
go along.
I SUPPOSE THERE ARE DIFFERENT TYPES OF EASEMENTS?
Certainement, mon ami. The most important distinction is between an easement appurtenant and an easement in gross.
An easement appurtenant has both a dominant estate and a servient estate. It's "attached" to the land, can be transferred by deed, will, or intestate succession, and is the type of easement referred to in VIRGINIA CODE §55-50.
An easement in gross is sometimes called a "personal" easement. There is no dominant estate; the burden is imposed on the servient estate with a benefit that runs to a person or entity rather than with the land. It does not "run with the land" and cannot be transferred or inherited. Pipeline easements and other public utility easements are easements in gross.
Easements in gross are not favored in law, so if an easement benefits a tract of land and enhances its value, it will be held to be appurtenant and pass with the land. However, this requires a judicial interpretation.
Easements appurtenant generally are insurable; easements in gross are not.
In addition, an easement may be positive (the dominant estate has the right to use the servient estate) or negative (the dominant estate may prevent the use of the servient estate for a purpose it would otherwise be entitled to use). Negative easements are often found as sight-line or aesthetic easements. ("Trees may not be planted in the easement area;" or "Trees may not be removed from the easement area.")
AN EASEMENT IN GROSS SOUNDS LIKE A LICENSE.
They are very similar, but there are subtle differences. Licenses usually are temporary, and may be revoked by the licensor. Unlike an easement, a license may be created by oral agreement. If a license is in writing and the terms specify that it is irrevocable, it likely will be deemed an easement in gross.
THERE ARE OTHER RIGHTS TO USE LAND, LIKE LEASES. HOW DO WE DISTINGUISH THEM?
An easement is the right to use the land, but not to possess it. Leases carry a right of occupancy or possession. Easements, unless otherwise limited, are perpetual, while leases have a termination of the estate included.
Personal covenants look like easements, but are distinguished by their not having any particular reason to be attached to the land, and with no historical basis for running with the land. They are more in the nature of a contract and contract rights than easements. For example, a grantor who conveys a tract of land with a covenant that the grantor will not conduct business on the residue of the land would not have created an easement but a personal covenant.
A "profit a prendre" is the right to take part of the soil or produce
of land (soil, gravel, oil, gas, minerals, timber, etc.) owned by someone else,
or the right to participate in the land profits. A profit differs from an easement,
inasmuch as one of the features of an easement is the absence of all rights
to participate in the profits of the land bearing the easement.
Many transfers historically considered to be profits a prendre are really deeds or leases, such as timber deeds, timber leases, or gravel leases. These rights may be insurable except when they cover oil, gas, or other minerals.
I THINK I'VE GOT IT. AN EASEMENT IS AN HONOR WITHOUT PROFIT, AND A PRENDRE IS A PROFIT WITHOUT HONOR.
Cute.
HOW ARE EASEMENTS CREATED?
Although there are numerous variations, the basic ways are:
1. Grant (or reservation);
2. Implication;
3. Necessity; and
4. Prescription
Grant or Reservation
These are the ones that show up in your title report. The owner of the servient estate grants the owner of the dominant estate the right to use the servient estate for a particular purpose. The grant will have all the characteristics of a deed: grantor, grantee, legal description (of the servient tenement), considerations, and words of conveyance. In addition, it will have a description of the purpose of the easement and limitations on the use. The deed of easement will be signed and acknowledged, and recorded among the land records.
Like a deed, there is no requirement that it be recorded.
Oral grants of easement may be given perpetual status by a court under certain circumstances, but are not insurable without a court order.
A landowner may also reserve an easement for himself/herself. Most of the time this occurs when the landowner sells a part of his/her property between what he/she is retaining and the public road. The deed of bargain and sale will contain language creating an ingress-egress easement across the severed parcel to the retained parcel. The reservation may also be created in a deed of subdivision, before any parcels are conveyed.
An attempt to reserve an
easement in a third party will not be valid.
Implication
Easements by implication are much harder to define. Whether or not an easement by implication exists will depend on the facts and circumstances unique to each case. The established rule is that the conveyance of property carries with it an implied easement for any use that is reasonably necessary for the enjoyment of the property conveyed, and is continuous, apparent, and in existence at the time of conveyance. For example, where a lake was the focal point of a development, was advertised as such, and was an inducement to the public to purchase in the development, the purchasers of lots had an implied easement across the retained lands to access the lake. See Stoney Creek Resort, Inc., v. Newman, 240 Va. 461.
Also, where land is described as abutting a lane, path, or other way, there is an implied covenant that the way exists, and the grantee is entitled to the benefit of it. See Walters v. Smith, 186 Va. 159. This is similarly true where land is sold with reference to a plat, and the plat shows a way bordering the lot.
Necessity
Easements by necessity (also sometimes called quasi-easements) are really in a subcategory of easements by implication. They arise to prevent property from being landlocked by the actions of the owner of the tract. In order to qualify for an easement by necessity, the to-be-dominant estate must show that the severance of the tract previously commonly owned with the servient estate created the need for access to a public road. In other words, the plaintiff must prove that at one time in the past, the dominant and servient tenements were owned by the same person. See Middleton v. Johnston, 221 Va. 797. Thus, drawing on the definition of easements by implication, the conveyance of land carries with it whatever is necessary for the beneficial use of the property.
Easements of necessity need only be reasonable, not absolute. A tract of land may front on a public road, but if the road is a hundred feet below the tract, the land will have the benefit of an easement by necessity. However, mere convenience is not sufficient; the fact that a public road may be in disrepair or not as direct or desirable as another will not give rise to necessity.
Prescription
Refraining from the obvious,
a prescriptive easement is similar to acquiring title by adverse possession.
It arises from continuous use, and must meet the same heavy standards before
a court will order its existence. The use must be adverse, under claim of right,
exclusive, continuous, uninterrupted, and with the knowledge and acquiescence
of the fee owner of the servient estate, all over a period of 20 years (in Virginia)
or 10 years (in West Virginia). As with adverse possession, the continuity may
be "stacked" with prior owners of the dominant estate to reach the
minimum time requirement.
A few other points about easements by prescription merit mentioning.
1. VIRGINIA CODE §15.2-2109.1 reduces the time period to 10 years for a political subdivision attempting to establish an easement by prescription.
2. If all the other elements are otherwise present, a claim of right will be presumed after 20 years.
3. If the use of the easement is permissive, no right to prescription can arise, no matter how long the permissive use continues. When the use originates by permission, it is presumed to continue with permission.
4. If an easement is in use by the general public, no right to prescription can arise because the essential element of exclusivity is lacking. However, each individual landowner may be able to assert a right to the easement independently, where the right is not dependent upon the common enjoyment with others. For example where Tracts A, B, and C are "vertical" to each other, with A fronting on the public way, B may assert a prescriptive easement over A, but C may not because C's use of A's land is not independent of B's use.
5. Once a prescriptive easement is established, the use of the easement may not be expanded beyond that which was its burden during the statutory period. Where a lane was used for repair of a fence for the statutory period, it cannot later be used for access to a new dwelling.
6. An easement cannot arise by both necessity and prescription, for the conditions are mutually exclusive. If an easement can be created by prescription, it cannot also be a way of necessity.
WHEW! IS THAT IT?
No, there are more easements, but they're relatively obscure.
Easement Created by a Mortgage
An easement may be created when the only grant of the easement is by the mortgage itself. This can only take place when the owner of the benefited land, which has the loan on it, is also the owner of the easement premises. Then, by the terms of the instrument, the owner establishes an easement over the easement premises for the benefit of the mortgaged premises. This easement will inure to the benefit of any purchaser of the benefited land at any foreclosure sale of the mortgage.
Easements by Estoppel
An easement by estoppel can arise where the seller of property makes representations
as to the existence of an appurtenant easement to the land being sold in connection
with other land owned by the seller. For example, if the grantor describes land
to be sold as bounded by a street running through the remainder of the grantor's
land, the grantor will be estopped from denying its existence as against his
grantee. The elements of an easement by estoppel are inducement, reliance, use
and damage.
ARE WE DONE YET?
Not quite. There are some "special" easements, which require "special" treatment.
Land Conservation Easements
Conservation easements are considered easements in gross. They are usually granted to a governmental entity or a not-for-profit organization without the requirement that the benefited party be the owner of another parcel of land. A typical conservation grant would involve a conveyance or grant by a landowner to a government unit or private non-profit entity for the purpose of preserving certain characteristics of the owner's property. The only property involved is the burdened property itself. Conservation easements are often referred to as negative easements. Since conservation easements are statutory, in certain cases they are insurable easements, as opposed to other easements in gross. See VA. CODE §§10.1-1009 et seq. ("and following" for those of you who missed high school Latin); W. VA. CODE §§20-12-1 et seq.
Condominium Parking Easements
This type will be discussed in detail in the section about insuring easements.
Others
There are a number of other "special" easements, but they are beyond the scope of this discussion (to borrow a phrase from MICHIE'S JURISPRUDENCE). These would include railroad easements, reciprocal easements (positive and negative), and historical preservation easements.
I'M GLAD SOMETHING IS BEYOND OUR SCOPE - OR AT LEAST OUR LISTERINE. MY BRAIN IS GETTING FULL.
Boo.
SAY I HAVE AN EASEMENT. WHAT CAN I DO WITH IT?
Use it.
No, seriously, when an easement is granted, it may be used for any purpose to which the land accommodated may reasonably be devoted unless the grant specifically limits its use. The dominant tenement must be allowed to use the easement to be able to enjoy the advantages and benefits for which it was granted, but the privilege imposes an obligation not to do any unnecessary harm to the servient estate. Easements which are not limited by definite description are limited by reasonableness.
The width of an easement is limited to the width at the time of the grant where
the width is not specified in the grant. The owner of the dominant estate has
the right to a right of way easement in a reasonable way in the absence of a
specific agreement locating an easement. Conversely, an owner of a servient
estate subject may relocate an easement by written agreement consented to by
all owners affected.
The owner of the dominant estate has the obligation to maintain the easement, and may enter upon the lands of the servient estate for such purpose.
In Hayes v. Aquia Marina, 243 Va. 255, 414 S.E.2d 820 (1994), a proposed expansion of a marina from 84 to 280 boat slips was held a reasonable use of the dominant estate. The Court explained that the resulting increase in traffic over the private roadway easement would not change the type, only the degree, of use and would not overburden the easement. Thus, paving the easement was reasonable and a proper means of maintenance.
If you happen to be the servient estate, fear not. You may make any use of your land that you want, as long as you don't interfere with the easement and its use. That's all that can be required of the servient owner.
Brick columns built within an easement were found to be a continuing trespass, interfering with the plaintiff's easement rights and were enough cause for a court to issue an injunction directing the defendants to remove them. Nishanian v. Sirohi, 252 Va. 337, 414 S.E.2d 604 (1992).
HOW DO EASEMENTS GET TERMINATED OR RELEASED?
Easements are extinguished in a number of different ways.
Express Release of the Easement
If the owner of the dominant tenement releases his right to use the servient tenement back to its owner, the easement ends. (At common law, the release had to be executed with the same formality as the instrument creating it.) Stewart requires such a release be recorded in order to remove an easement from a commitment or policy.
Termination by Express Terms
An easement may also terminate
by its express terms, upon the happening of a future event or condition. Where
a deed of conveyance required a private road to be kept open until an alley
was opened to provide access, the grantees' establishment of the alley terminated
their right to use the private road.
Cessation of the Purpose for Which the Easement Was Created
An easement created by necessity lasts only as long as the necessity to use it exists. Where property near a railroad spur track had an easement to access the spur track, the easement was extinguished when the rail service was discontinued. "If the particular purpose for which [an] easement is granted is fulfilled or otherwise ceases to exist, the easement . . . falls to the ground." Pyramid Development v. D & J Associates, 262 Va. 750, citing 1 FREDERICK D.G. RIBBLE, MINOR ON REAL PROPERTY §107.1.
Abandonment
Mere non-use does not extinguish an easement created by express grant. There must also be acts by the dominant tenement to show an intent to abandon the easement, or an adverse use by the owner of the servient estate acquiesced by the dominant estate. The burden is on the servient estate to prove abandonment by clear and convincing evidence.
Facts sufficient to constitute abandonment must be evaluated on a case-by-case basis. For example, where a predecessor power company had an unlocated easement on a tract and the lines could not be found, and the existing power company had obtained an easement which it was using to supply power to the tract, it was reasonable to consider the prior company's easement to have been abandoned.
Change in Use by the Dominant Tenement
If the language of an express easement restricts the use of the easement to conditions as they exist at the time of the grant, any change in the dominant tenement that expands the use of the easement may terminate it. Where a residential tract has a drainage easement across adjacent land, and the residential tract is subsequently changed to commercial such that the effluent is substantially increased, the easement may be extinguished. However, the mere division of the dominant tract will usually not work a termination.
Merger
If the owner of the dominant estate acquires the servient estate, or vice versa, an easement benefiting the dominant estate is completely extinguished and merged. However, there must be an absolute equivalent ownership in fee simple absolute for there to be a merger. For example, if the owner of the dominant estate encumbered by a trust acquires the servient estate, there is no merger, for the owner of the dominant estate holds only the bare equitable title. The same result obtains if there is a life estate in one or the other, or there is an undivided ownership interest in one or the other (e.g., joint tenancy). Once extinguished by merger, an easement is not revived by the subsequent severing of the original dominant and servient estates.
Most title companies will not rely on the doctrine of merger to delete an easement as an exception in a title policy, but will require a termination of record.
Transfer of Servient Tenement to Purchaser Without Notice
A purchaser for value of a servient estate who does not have notice of the existence of an easement will take the property free of the easement. Underground drainage, light, air, or sight easements are some examples of those that may be terminated in such a case. Actual or constructive notice, or the obligation to inspect the property which would reveal the easement, will bind the purchaser to the easement.
Easements by necessity are never terminated by transfer without notice.
OKAY, SO HOW DO TITLE AGENTS TREAT EASEMENTS IN COMMITMENTS AND POLICIES?
Let's start with the idea that any easement that affects the land being insured must be shown as a Schedule B exception, even if the policy insures the dominant estate, unless the easement has been otherwise released of record or terminated by agreement or court order.
The exception should contain the general nature or purpose of the easement, the location if known, and, of course, the recording information. If the easement is extremely complex in its terms, the exception should be preceded by "Terms and provisions of . . . ." If taking exception to an easement shown on a survey, it should read "as shown on survey by ____________ dated ____________."
HOW CAN AN AGENT TAKE EXCEPTION TO AN EASEMENT NOBODY KNOWS EXISTS?
They can't. That's why there's title insurance.
WHAT IF SOMEONE WANTS AN EASEMENT INSURED?
There's nothing special you need to provide to a title agent to insure the servient estate, because what the servient estate has is the fee interest in the land - and that's already covered by the policy. There will merely be an exception to the easement on Schedule B.
Insuring that the dominant estate has the right to the use of the easement ("together with . . .") requires more work, however. First, the title company will usually require that the easement be appurtenant. (Remember that term from so many pages ago?) If the easement is appurtenant, title to the servient estate must be examined to ascertain that the easement was properly created.
Then:
If it is an exclusive easement, that must be stated in the creating instrument. (Most underwriters prefer a non-exclusive easement.)
If the easement meets all of the above criteria, the title agent will insure the easement as a "together with" appended to the legal description. However, the easement will still be an exception on Schedule B.
WHAT ELSE SHOULD WE LOOK FOR?
The list includes:
YOU MENTIONED PARKING EASEMENTS. WHAT CONDO FOOL (DO YOU . . . THINK I AM) (The Tams, 1966)
Here's how parking easements can be insured:
The parking easement may be considered appurtenant if:
Virginia and West Virginia statutes define limited common elements as a portion of the common elements reserved for the exclusion of other units.
ANY OTHER WAY AN EASEMENT BECOMES INSURABLE?
Yes. If you have a court order in final form, prescriptive or necessity easements may be insurable. Submit the documents to the title agent to be approved by underwriting counsel for the title company. Or, if you are the title agent, submit them to yourself to be approved, etc. etc.
THAT'S A LOT OF INFORMATION. ARE WE DONE YET?
I suppose. For now. You're welcome.
*Stephen C. Gregory is Virginia and West Virginia state counsel for Stewart Title Guaranty Company in its Fairfax, Virginia, office. He is a member of the Virginia, Federal, and Bankruptcy Bars, and has served the Fairfax Bar Association on several committees, including a year as chair of the General District Court Committee. He has been a licensed title insurance agent since 1986, and joined Stewart Title from private practice in April 1999. He also serves as a co-chair of the Title Insurance Subcommittee and as an Area Representative of the Real Property Section of the Virginia State Bar.