Clear, accessible definitions for common urban planning terms.

What Is an Easement?

5 minute read

There are limits to the rights and powers associated with land ownership. Easements are a critical example of how property rights can be balanced with the needs of neighbors, the public, and other interests external to the control of property owners.

A sign reads “State Fishery Area Public Easement Open to Fishing.” In the background is a stream surrounded by snow on the ground in a natural setting.

If you want to fish on private land, you are going to need an easement. | Aaron J Hill / Shutterstock

Easements allow individuals, corporations, governments, or the public to use a piece of property belonging to a separate individual or entity for a specific purpose or general purposes. For example, utility companies commonly use easements to create or maintain power lines or cables on private or public property. Easements allow the public to access roads that cross private properties. Start looking around, and you'll find examples of easements in all parts of the country and in every neighborhood. One thing to be clear, however, is that easements produce benefits for a "non-possessory" entity, which can take many forms, and not always in the interests of the owner of the property.

Because they reveal the limits of property ownership, an understanding of easements is critical to an understanding of the rights, privileges, and limitations of property ownership. 

Terms Related to Easements

Easements introduce a host of related terms critical for understanding the definition and contexts of easements. For example, limitations on the unfettered rights of property ownership, such as easements, are known as an encumbrance. Another way of describing an encumbrance is as any claim on a property that prevents its owner from fully utilizing and benefiting from the property. Easements can come in numerous varieties, as will be explained in additional detail below, and are one of the more commonly encountered forms of encumbrances. 

In the legal terms of an easement, the servient estate (or servient tenant) owns the property and grants access to a dominant estate (or dominant tenant). In other words the dominant estate benefits from the easement despite not owning the property that offers those benefits, while the servient estate owns the property but grants the benefit of the easement through the use of their property. Property owners are likely to gain many financial benefits and maintain numerous property rights, but in the legal terms of an easement, they serve as the servient estate. Think of the servient estate as a homeowner who serves invited guests with food, drink, and hospitality.

The particular details of any specific example of an easement are defined by a long history of legal precedent. For example, an affirmative easement grants the dominant estate the right to specific purposes on the servient estate's property, such as walking down a path across a property to access a school, or a beach. A negative easement prevents the dominant estate from developing their property in a way that blocks some benefit of the dominant estate. An example of a negative easement includes when a property owner is prohibited from constructing structures that would block a neighbor’s views of the ocean. 

An easement appurtenant "runs with the land," automatically transferring the benefits of the easement to a new owner of a dominant estate. In other words, an easement appurtenant is not limited to a period of time or a specific property owner. Instead, an easement appurtenant is tied to the property itself. Conversely, an easement in gross benefits an individual or a legal entity, rather than a dominant estate. An easement in gross is tied to a specific person or entity, not the property itself. Private easements limit the benefits of the easement to a specific number of individuals or entities as the dominant estate. An express easement is one that lays out the terms of the easement in a legal document. 

Although it might be assumed that all easements are express easements, some easements can be created without such direct participation from the servient estate. An implied easement, for example, is not written down, but is made apparent by historical use of the property. Similarly, an easement by necessity occurs when the use of the servient estate's land is necessary, like for a dominant estate that is landlocked and requires passage on a servient estate's property to reach public roads. Implied easements require the preexisting use of the land, and can also be called prior use easements; easements by necessity, by comparison, do not require prior use of the land. In another example of non-express easements, a prescriptive easement occurs through the "open and notorious" use of the servient estate's land, even potentially against the servient estate's wishes. Finally, an easement by estoppel is understood to exist based on the behavior of the servient estate. In an easement by estoppel, the dominant estate thus relies on the belief in an easement based on the conduct of servient estate. 

A public easement grants an easement to the public, for example, to allow public access to a road built across a parcel owned by an individual. Similarly, utility easements grants access to private or public entities for the maintenance of utility services, such as sewers, drinking water supply, electricity, or internet. An easement by government could act on behalf of utilities or other government agencies to provide benefits for public or municipal purposes.

A floating easement provides an easement prior to the delineation of specific details such as the location, route, method, or limit of the easement. A conservation easement sets limitations on the type and scale of development allowed on property for the protection of natural and agricultural lands.

The Legal Boundaries of Easements

There are other ways for external forces to acquire some rights and privileges to private property beyond easements. Licenses to use property are similar to, but more limited than, easements. The government can also use the power of eminent domain to force the sale and purchase of private property.

Because easements navigate a kind of middle road between renting or leasing and eminent domain, a significant amount of legal precedent has been devoted to determining the legal definitions of easements, especially as related to the Takings Clause of the Fifth Amendment to the constitution—the same key constitutional passage defining the powers of eminent domain.

The 1987 U.S. Supreme Court case Nollan v. California Coastal Commission is most frequently cited in planning practice as an example of how easements must be considered as a "taking" as defined by the 5th Amendment. The case overruled an easement enacted by the California Coastal Commission to allow public beach access, in effect creating a requirement for government regulations to serve a substantial public purpose. Exactions created by easements, therefore, are valid as long as the exaction and the project are reasonably related, according to the ruling.

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