Easements, licenses, and encroachments

Rights, permission, and physical intrusions

An easement is a nonpossessory right to use another person's land for a specified purpose, such as access or utilities. The landowner keeps ownership, subject to that use. A license is permission to use land, generally personal and revocable. An encroachment is a physical intrusion across a boundary, such as a fence or garage extending onto a neighbor's land without a right to do so.

Who benefits?

An easement appurtenant benefits a parcel called the dominant estate and burdens a parcel called the servient estate. The benefit generally passes with the dominant land; the burden generally remains with the servient land. An easement in gross benefits a person or entity rather than a dominant parcel. A utility company's right to maintain lines is a common example. Do not assume every easement in gross is nontransferable; commercial rights may be transferable.

Creation and termination

An express easement is created by a written grant or reservation. A grant gives another party a right; a reservation retains a right when conveying land. An implied easement may arise when commonly owned land is divided and an existing, apparent, continuous use meets the legal requirements. An easement by necessity can arise when division of commonly owned land leaves a parcel without legally sufficient access. Convenience alone does not establish necessity.

A prescriptive easement arises from qualifying open, notorious, adverse, continuous use for the required period. Permission defeats the adversity element while permission continues. Prescription establishes a use right, whereas adverse possession can establish ownership. Specific requirements, periods, and remedies depend on governing law and the facts.

Easements can end through a valid release, expiration, merger of the dominant and servient ownership, or abandonment supported by intent and conduct. Mere nonuse does not ordinarily establish abandonment. An easement based on necessity ends when the necessity ends; an express access easement does not necessarily end because another road becomes available.

Apply the distinctions

Permission to park for a weekend suggests a license. A recorded access right benefiting a rear parcel suggests an appurtenant easement. A shed extending past the boundary suggests an encroachment. A survey helps locate boundaries and improvements; title documents help identify recorded rights. Neither a visible path nor a fence alone proves the legal right or boundary. Compare the physical facts with the documents and obtain qualified help to resolve disputed rights.