What is an Easement?
A common property interest are easement rights, even though most people have no real idea what they are. This post discusses the general definition of an easement in Ohio, naming some of the basic requirements of an easement. The general definition of easement is simply a physical right to enter onto another’s property, for a specific purpose. While an easement is a right to enter onto another’s property, it is not, strictly speaking, a property interest. It is an incident to the right of property ownership, and a means to having the right to use property of another for a particular purpose. The legal consequence of an easement is the right to enter onto another’s property and either use the property or not. An easement is not, for example, the right to exclude another from the land, as by a tenancy in common. Rather, an easement is the right to access land owned by another for a specific purpose connected with owning or using one’s own land . For example, an easement giving the right to remove water from another’s land in order to use it one one’s own parcel, or for an adjacent purpose such as a ditch line, is a scientific easement. These rights may be included within the deed of land. Such an easement can be created in favor of the State or a municipality, when it is necessary "for the development of a waterworks, reservoir, or aqueduct," G.C. 1687-2. There are many kinds of easement rights, and the one of which the owner of the parcel benefit speaks to the law of prescription, a kind of claim right that comes from long use without interference by the owner of the parcel. Easements exist in two forms, those which are inappurtenant to the land happens to be the whether the easement is attached to the land itself and transfers to a new owner when owners sell the land, or whether it is personal to owner and revert to the successor to the estate upon the transfer.
Easement Types in Ohio
An easement exists when one party has the right to use a portion of another party’s real property. As previously mentioned in our blog post "What is an Easement Under Ohio Law?" there are two general categories of "easements" under Ohio law: (1) an easement in appurtenant and (2) an easement in gross. An easement in appurtenant involves two adjacent pieces of land, one which benefits from the easement and one which is burdened by the easement. An easement in gross typically involves an easement that benefits a particular individual or business entity, as opposed to a parcel of real estate. There are various types of easements in Ohio. By way of example, express easements, implied easements and prescriptive easements can all be "easements in appurtenant". An easement in gross tends to frequently arise in the context of utility easements or telephone easements, for example.
Express easements are created through an express contract between the parties (or parties’ predecessors-in-title). In Ohio, express easements must comply with statutory provisions governing the conveyance of real estate, meaning that the express easement must be in writing and signed by the party granting the easement. Ohio law also recognizes easements by implication, which arise by law, based on acts or words of the parties. For example, an easement by implication for a parcel of real estate may be established if the previous owner of the property placed a sewer lateral across the adjacent property, without a written easement, provided the substantive evidentiary factors outlined below are satisfied.
Implied easements arise when the owner of a tract of land conveys to another tract of land a part of the tract, the previous owner had treated as one lot (a common grantor). In order for an easement by implication to exist, a party must prove that the following five evidentiary factors are satisfied:
Prescriptive easements arise when one party uses the real property of another party without permission, and that possession is: For an easement by necessity to be established, the former common owner (i.e. common grantor) of the two parcels must have made a conveyance of the dominant estate that is denied of access to a public road.
How Ohio Easements Are Made
Easements are often created when there is an agreement between the parties that the easement will not be recorded until a later time. In that situation, the parties are bound by the agreement, and the easement would be considered to have been created at the time the agreement is made. If, on the other hand, the parties record the easement in the public records, the easement is created only when it is recorded. The Ohio courts have held that where the grantor signs the deed and delivers it to a third person to record at a later date, the easement is not created until the recording takes place, even though the grantor may have intended for the easement to be effective on the date of the agreement. Once the easement deed is recorded, however, it is viewed as having been created as of the time of delivery and not the time the document is filed in the public record. Easements can also be created by condemnation. Just as with the conveyance of property to a private party, a property owner continues to own the property but transfers the right to install and maintain the utility or road that a public body or utility intends to use. An easement can also be express or implied. In order to be enforceable, the easement must run with the land, must identify the properties involved and, except for easements by necessity or prescription, must be supported by consideration. Easements can be permanent or temporary, and can either grant a right or restrict the use of a property. They can be set out in leases or mortgages, or be created by necessity or prescription. The former allot the right or restriction of use through the execution of a document, while the latter two types of easements are generally established after the fact when landlocked property would otherwise result, or where a landholder openly and knowingly uses the property of another for a period of at least 21 years.
Easement Disputes: How to Resolve Issues
Easement disputes in Ohio often arise due to: (1) improper location of the easement, (2) excessive use of the easement or (3) damages caused by the easement to the parcel being burdened by the easement. An example of this would be if the easement was located too close to a home, causing damage to the home. Another example would be if the easement was improperly used. The law is clear that the easement can only be used for the purposes for which it was created, but sometimes parties get carried away with their rights and the burdened party has to assert its rights. A typical case of excessive use would be if an easement for ingress and egress was utilized for parking by the dominant parcel.
Litigation can be difficult when it involves easements. It can be expensive and both parties can be left worse off when it’s all over. Very few people want to litigate these cases. Like many other areas of real property law, these cases and issues can often be resolved through mediation.
Courts are not fond of forcing their own views into easement matters between private parties. These folks know better than anybody what their easement needs are and the general public policy favors private decision making on property issues. Many courts will just throw these matters out of their jurisdiction if they feel you can resolve them. If the case does not involve a fee simple issue, you do not have to have jury trial under the U.S. Constitution. It’s a great way out for courts that do not want to take on the difficulties of easement use and implications.
The key to resolving these types of problems is getting out in front of the issue. Do not let it fester and become a major issue with neighbors and relate it to other issues that may be going on. Try to negotiate a solution (including findings of fact), put it in writing and have it recorded. It is extremely hard to get work done if the easement is subject to different types of restrictions that are unclear. Also, be courteous to your neighbor, if the easement use did damage, it may be best to fix it before asked. Small things can get blown out of proportion and become really nasty. This is cost-effective and pays off when you need a favor down the road. I have seen easement disputes destroy friends and neighbors. It is tragic. Easements are a source of property dispute litigation. Like many other disputes, if with little effort and good information, it can usually be resolved with a minimum of emotional anguish and financial impact.
Easement Termination
Easements may be terminated in Ohio through various means. An easement may terminate by the expiration of its term if it is for a stated term of years. However, an easement is almost never granted for a stated term of years. Thus, this situation is rare. An easement may be terminated by expiration as well. That is the case with an easement by necessity. An easement by necessity exists in Ohio when the servient estate is subject to a dominant estate which has no access to a public road or highway. The easement by necessity terminates when one of the properties is transferred to the owner of the other property, and the two properties are reunited. Also, an easement may terminate by unity of title or foreclosure. Unity of title means the two estates were once one, and then became two. The original owner of the servient estate divided his or her estate into separate lots granting an easement to the adjoining lot. Also, foreclosure terminates an easement. Foreclosure puts an end to all rights of a grantee on the delinquent mortgage, including those on the servient estate. Another way an easement may terminate is by abandonment . Abandonment is the voluntary relinquishment of a right without any intention to reclaim it. This doctrine applies when there is positive acts that amount to an abandonment of the easement. Easements may also terminate when the dominant estate has been extinguished. Several things will extinguish the dominant estate. First, a merger of the dominant estate and the servient estate will terminate the easement. A merger occurs when all of the interests in the servient estate and dominant estate are united in the same person, and that person is another than the original grantor. Second, when an easement is created so that it will last during a certain period, it terminates at the end of that period. In addition, an easement may be terminated by prescription. Prescription is a form of involuntary termination. Prescription takes place when the dominant estate holder conducts activity over the servient estate that is not consistent with the rights conveyed in an easement agreement. The landowner must prove the use was exclusive, hostile, open, and continuous. Finally, easement also may terminate by abandonment or nonuser if it is not founded on an express agreement.
Easements May Affect Property Values
Easements can have a significant impact on the value and usability of the property they are placed upon, and this effect can be either positive or negative, depending on the nature of the easement. Positive impacts: For oil and gas exploration and related purposes, say on a farm for example, such easements can be valuable in themselves, and should probably be taken into account when establishing the value of that property. If a right-of-way easement abuts another property that is more marketable without it, that easement could have a positive effect upon the value of the encumbered property, because it makes it more marketable to prospective buyers of that property. For example, if a seller is selling a tract of land with an easement which gives access to the adjacent property, not otherwise accessible, the seller can argue that there is an increased benefit to the path of ingress and egress given to the servient estate that is exposed to the market by virtue of the sale of the dominant estate. Even if the right-of-way easement is not used by the user of the easement, and is purely incidental to the value of the servient estate, the mere existence of the easement augments the marketability of the servient estate to the buyer. Further, in the event the right-of-way easement is terminated, then the value of the servient estate arguably increases, as it becomes more desirable to the adjacent property owner, eliminating the obligation owed to the dominant estate holder. Negative impacts: A utility easement that runs through the property will make that property less desirable to potential purchasers, in part because the utility company may come onto the land at any time and perform work on the easement, potentially making the land unusable during that time. Also, it will be automatically more marketable to a utility company since their easement will run through the property. An easement for commercial development will effectively reduce the usable area of the property, and there may be a price reduction for that reason, particularly if the property is leased or rented. Environmental easements in Ohio may only be found on certain designated properties, namely, those that would otherwise be deemed to be "brownfields" and thus attractive to heavy industry. This places Ohio’s solid political economy behind these properties, and will make them more valuable as a result.
Legal Assistance and Resources for Easements
In cases of easement disputes or ambiguities, hiring a legal professional with experience in Ohio real estate law can help property owners either avoid or resolve the issues outlined above. Laws and guidelines will vary from state to state, and an attorney can make sure that their clients are complying with both Ohio law and any local guidelines, as well as understanding their rights as property owners when it comes to easements. An attorney can also help clients navigate any disputes they may be facing regarding easements, working with the other property owners involved or taking action in court, if necessary.
It is often a good idea for homeowners to consult an attorney to clarify questions – or concerns – they have surrounding easements before buying a property . For example, while easements are often added during transactions between neighbors, property buyers have a right to be made aware of any encumbrances or restrictions that will impact their property after a sale. If the property owners are not notified about these kinds issues before the transaction is finalized, it may be possible for them to pursue a legal claim against the seller or the real estate agent involved.
Of course, seeking the advice of an attorney is often a good choice when it comes to resolving an existing dispute as well. Taking action to reduce ambiguity or address unfair situations through legal action sometimes requires complicated negotiations and filings that can be difficult for an untrained individual to navigate.
Individuals can consult the Ohio State Bar Association to find more information about easements and other aspects of Ohio real estate law.