Easements, encroachments, licenses, and deed restrictions
Owning land does not always mean owning every right in it. Other people may hold rights to use it, and promises in the chain of title may limit how it can be used.
Easements
An easement is a right to use someone else's land for a particular purpose without possessing it. A driveway across a neighbor's lot and a utility line under a yard are common examples. An easement is an interest in land and an encumbrance on the land it burdens.
Appurtenant vs in gross
| Easement appurtenant | Easement in gross | |
|---|---|---|
| Parcels involved | Two: a dominant estate that benefits and a servient estate that is burdened | One: the burdened land. The benefit belongs to a person or company, not to neighboring land |
| Example | A right of way across Lot B so Lot A can reach the road | A utility company's right to run power lines across a farm |
| On sale | Runs with the land; passes automatically to the next owner of the dominant estate | Commercial easements in gross, like utility easements, are generally transferable; personal ones generally are not |
The burden of an easement stays with the servient land when it is sold, too. A buyer of the servient estate takes it subject to the easement.
How easements are created
- Express grant or reservation, written in a deed or separate agreement.
- By necessity. When land is divided and one part is left landlocked, with no access except over the other part, courts may imply an easement across the other part. It ends when the necessity ends, for example when a new public road reaches the landlocked parcel.
- By prescription. Someone who uses another person's land openly, without permission, and continuously for the period state law sets can gain a prescriptive easement. It is the easement cousin of adverse possession, but the claimant gains only a right to use the land, not title, and exclusive use is not required.
- By implication, from a prior use that was apparent and continuing when the land was divided.
Easements can end by merger (one person comes to own both the dominant and servient estates), by a written release, by abandonment, or when the purpose for an easement by necessity ends.
Licenses
A license is personal permission to enter or use land: a concert ticket, permission to fish in a neighbor's pond, a parking pass. A license is not an interest in land. It is usually revocable and generally ends when the landowner dies or sells the property. That revocability is the key difference from an easement.
Encroachments
An encroachment is an unauthorized intrusion of a structure or improvement onto neighboring land: a fence, driveway, roof overhang, or tree that crosses the boundary. A survey is the usual way to find one. Encroachments can make title unmarketable and, if left alone long enough, may support a claim for adverse possession or a prescriptive easement. Typical fixes include removing the structure, granting an easement, selling the strip of land, or a court order.
Deed restrictions and covenants
A deed restriction, or restrictive covenant, is a private limit on how land may be used, written into a deed or a recorded declaration. Subdivision covenants often control building size, fences, sheds, colors, and rentals.
- Covenants are private and are enforced by the people they benefit, such as neighboring owners or a homeowners' association, usually through a court order (an injunction).
- Zoning is public land-use control by the government. An owner must follow both; zoning that allows a shed does not cancel a recorded covenant that forbids one.
- Courts will not enforce restrictions that are illegal. Covenants that restrict ownership or occupancy by race, for example, are unenforceable (Shelley v. Kraemer, 1948) and violate fair housing law.
Exam tip: easement = right to use (interest in land); license = permission (not an interest, revocable); encroachment = a physical intrusion; deed restriction = a private rule about use.