An easement appurtenant is the legal term for the right to use land (or a portion of it) for a certain specified purpose. The reason why it is called “appurtenant” is that it belongs to the land. If you acquire land that already has an easement appurtenant attached to it, the person’s right to the land will survive. Therefore, it is essential to both search the title and view the land and how it is used before you purchase it. If you are buying another property that benefits from the easement, you have the right to continue to expect that use of the land.
Dominant and Servient Estates in an Easement
In every easement appurtenant, there is both a dominant and servient estate that are defined as follows:
- The dominant estate possesses the easement. It is called dominant because it has a right to use another property.
- The servient estate is burdened by the easement. It is called servient because it serves the other parcel of land that has the right to use it. In a sense, this is counterintuitive because the dominant estate relies on the servient estate for access.
How Easements Appurtenant Happen
Easements appurtenant can arise in a number of circumstances. The most common reason for an easement appurtenant is that one property needs access to an adjoining piece of land to be able to have ingress and egress. Without the easement, the property would be landlocked and have no access to adjoining roads. Usually, a landowner would grant their neighbor an easement to cross over their land to reach a road. Even if the landowner would not provide the easement, a court may order them to because of the presumption that a property owner should never be boxed in on their property.
When the easement is express, the two parties will negotiate an agreement that may specify the following:
- The exact purpose of the easement
- The duration of the easement
- Any financial compensation that the dominant estate must pay to the servient estate
- Indemnification clauses to relieve the servient estate of any liability
Other Reasons for Easements Appurtenant
Access is not the only reason for an easement appurtenant. The dominant estate may need to use the land for other reasons. For example, the utility company may need an easement to run lines across the land. Other authorities, such as a local government, may need access for actions such as installing a sewer system or building roads.
An easement appurtenant can be granted in one of three ways:
- The easiest solution is if the servient estate expressly grants an easement to the dominant estate. This easement should preferably be in writing, and would be on file in the local county recorder’s office. Then, there would be no question about whether this easement exists. All another party would need to do to find out whether this kind of easement exists is to perform a title search.
- An easement could be implied based on the circumstances. Implied easements arise under the theory that some things are so obvious that they do not need to be written down. For example, if there was a path that cut through the property at the time a buyer purchased the land, and the easement was reasonably necessary for the dominant estate owner to enjoy the property, there would be an implied easement.
- There is an easement by necessity if the dominant estate absolutely needs access to the servient estate when there are no other options for ingress and egress to the property.
Prescriptive Easements in Georgia
There are prescriptive easements that take effect after one has been using the property of another in a certain way for years without the owner objecting to it. For example, if someone uses their neighbor’s property as a cut through for their own convenience, they may permanently have that right unless the owner tells them to stop. A person can even create a prescriptive easement when they are granted permission to use land but they exceed the permission that the owner has granted them. In Georgia, a prescriptive easement can be established in as little as seven years.
The easement appurtenant is only valid for the purpose for which it is necessary. In other words, if the dominant estate owner has the ability to cross over the servient estate at a certain location, they cannot use other parts of the land. If the dominant estate owner misuses their rights, the easement could be extinguished entirely.
The easement appurtenant lasts as long as there is a need for it. The right to use the land of another will not be extinguished if the property changes hands. If you are buying the dominant estate, you have the right to continue to expect use of the easement. The servient estate owner must continue to grant access regardless of whether they are in favor of the easement. Otherwise, nobody would want to purchase or use a property that is completely landlocked.
Get Legal Help When Dealing with Any Type of Easement
If you are purchasing property, you should look closely at the land over a period of time to determine whether anyone else is using it. The law considers you to be on notice of an easement at the time you purchase property, especially when the easement is readily visible. At the same time, a seller should disclose the easement during the transaction process. As always, if you have any questions about easements appurtenant, you should contact an experienced easement rights lawyer to learn more about them.