The Use of Exclusive vs. Non-Exclusive Easements

Easements, Real Estate Law

An easement grants its holder a non-possessory right to use the land for some purpose. The party who benefits from the easement may use the property in a variety of ways, but it does not confer ownership rights to the property. Most easements are created as non-exclusive easements. In a non-exclusive easement, the party who benefits from the easement is not permitted to exclude other individuals, including the property owner, from use of that property. Non-exclusive easements typically have multiple easement holders benefitting from use of the property.

A non-exclusive easement may vary in duration. A perpetual non-exclusive easement renders the land permanently accessible to all those who benefit from the easement. Alternatively, a temporary non-exclusive easement is granted for a specific period of time. Non-exclusive easements are generally perpetual in nature and “attach” to the land. As such, future transferees are entitled to benefit from the easement.

A landowner may also grant an exclusive easement by limiting the right to use all or some part of the property to a particular party. This precludes all other parties from using the property in any manner. But similar to a non-exclusive easement, the holder of an exclusive easement has no possessory rights with respect to land. An exclusive easement can be implied through a covenant or pattern of use, obtained through explicit language in a deed, or based on necessity (such as access to landlocked property). When an exclusive easement is granted, it is only effective with respect to the grantee. Thus, once the property is sold or transferred, the future property owner does not retain the benefit of the easement.

Parties who agree to create an exclusive easement should ensure that the agreement clearly reflects the rights of the property owner and easement holder. The contract should be in writing and contain adequate detail about the terms of the easement in order to prevent disputes in the future. If the property owner interferes or limits the easement holder’s use of the land, or permits others to do so, then the easement holder can initiate legal action to prevent such activity.

The experienced team of attorneys at the Law Offices of Mark Weinstein, P.C. can help you litigate your real estate claims. Contact Mark Weinstein and his colleagues at (770) 888-7707 or visit them at https://www.markweinsteinlaw.com to find out how they can advise you.

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