Lately I have received an increasing amount of inquiries related to easements. A few examples: (i) a residential property owner inquiries about his right to use a “shared driveway,” (ii) a commercial property owner wishes to understand how access, drainage and sight line easements will impact a project design, and (iii) a purchaser conducting due diligence wishes to understand how easements in the title will affect the purchaser’s rights and obligations.
In order to determine how an easement affects land ownership, one must first understand what an easement is. Simply put, an easement is a non-possessory right to use someone else’s land. There is typically a dominant parcel and a servient parcel. An easement differs from a “fee simple” which bestows a greater property interest, including the right to possess/occupy the land. In New York, most people who buy a single family home or condominium receive a fee simple interest.
Educators sometimes use the “bundle of sticks” metaphor to describe property rights. When a purchaser buys a parcel of real estate, he/she receives a bundle of sticks. Included in that bundle of sticks is the right to possess/occupy the property, access the property, encumber the property with a mortgage, exclude others, and convey title to the property.
“Sticks” may also be removed from the bundle of property rights. For example, Owner A grants an easement to Owner B so that Owner B may access a body of water abutting Owner A’s land. Another example: Owner A and Owner B share a driveway and enter into an easement agreement to establish their rights and obligations with respect to the driveway, including access, maintenance, repair, and snow and ice removal. Perhaps most common is a utility easement, allowing a utility company to enter onto private property for purposes of installing and maintaining utility lines (gas, electric, telephone, etc.) for the benefit of the private property owner.
There are many different types of easements. Conservation easements may impose restrictions on development in order to preserve open space. Drainage easements may set aside land for stormwater runoff. Sight line easements may be designed to ensure the safety at roadway intersections. The term “paper street” is an easement reserved for a right of way to be constructed at a future date e.g. in a subdivision of land. A light and air easement is a negative easement often found in New York City which prohibits development/construction in certain air space.
Licenses are distinguishable from easements because they are often revocable, for a limited time, and for a limited purpose e.g. hunting or fishing. In contrast, in New York easements are recorded in the County Clerk’s office and “run with the land” i.e. the easement is binding on current and future owners of the properties in question.
It is important to understand that there is no “one size fits all” easement. Easements are drafted by attorneys and should be interpreted by them.
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