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Easements: Who can use them, and can they be conveyed?

On Behalf of | Jun 7, 2023 | Real Estate Law

Can your neighbor use the private road on your property to reach the main road? Or can the electric company enter your backyard when you are not home to perform maintenance and repairs on equipment?

In many situations like these, your neighbor or a utility company can use part of your property because there is an easement.

What is an easement?

An easement gives someone the right to use land for a specific purpose even if they do not own the land. The landowner cannot restrict that right, for example, by locking a gate or erecting a fence.

There are two types of legally recognized easements in Arkansas.

An “easement appurtenant” applies to properties that share borders. It is an easement that burdens the land where the easement is located and benefits the owner of the property that uses the easement.

An easement appurtenant is permanent, meaning it follows the land when the land is sold or inherited. This type of easement usually is recorded on the deeds to the respective properties.

An “easement in gross” is granted to a specific person or entity. This type of easement does not have to follow the land if the easement-user conveys their property, although it usually does. If the land where the easement is located is sold or inherited, the easement need not follow it, although there is usually an exception for public utility companies.

Express and implied easements

Easements appurtenant and easements in gross can be express. An express easement is written. It is generally included in a contract or deed.

Easements appurtenant can also be implied. Two types of implied easements are necessary easements and prescribed easements.

A necessary easement is that, at the time of its creation, sat on land owned and used by one person. Following that, the property was conveyed, which interrupted the use of the easement. The interrupted easement will be implicitly reinstated if it was necessary when it was first used and it was still necessary at the time of conveyance.

A prescribed easement is created when a person uses land that was unoccupied and not fenced in for a certain number of years. A prescribed easement can be implicitly created without the property owner’s permission.

Examine the deed

If you are planning on buying or selling property, you will want to examine the deed to see if it includes the right to use an easement or if an easement sits on it. The right to use this easement might follow the land if it is conveyed, whether the easement is written or implied. This information can help buyers and sellers better understand the ownership and use of the property up for sale.