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Easements Defined

An easement is a property interest which falls within the larger category of servitudes. Easements are conceptualized as encumbrances on the real property they burden, rather than estates in that property. An "affirmative easement" creates the right to enter and use land possessed by another in a way which would constitute a trespass without the easement. The easement obligates the possessor of the burdened land (i.e. the Servient Tenement) not to interfere with the specified use by the owner of the land who realizes the benefit (i.e. the Dominant Tenement). Affirmative easements are frequently used to create rights-of-way for driveways, pipelines, and utility lines, and may also be used for roads and railroads. An easement is an interest in land, subject to the Statute of Frauds, which usually requires creation by a written instrument.

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Uses of Easements

Easements are used when one desires to use the land of another, but does not need to own an estate in the land to accomplish his purpose. Typical uses of easements include rights-of-way for access to public roads, access to recreational facilities, utility lines, and railroad lines. Easements are also created for parking, drainage, flooding, recreational purposes, flight pathways for low-flying aircraft, and discharge of pollutants, as well as many other uses. Even though it may be simpler for one to conduct these activities on land belonging to another by purchasing the fee simple estate, or enter into a term lease, buying an easement is usually less expensive. In theory, easements allow more efficient use of land because several different users may simultaneously hold easements in the same parcel of real property. This allows more people to utilize and enjoy the fruits of a piece of real property.

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Creation of Easements

An easement is an interest in land, subject to the Statute of Frauds, which ordinarily requires creation by a written instrument. An easement may also be created by estoppel, prescription, implication, condemnation, dedication, or judicial refusal to enjoin repeated trespasses or to order the removal of encroachments. Generally, to create an easement, a person must either own or have the power to create an easement in the property the easement is to burden; but one need not own the fee simple estate in the real property. Any possessory estate may be burdened by an easement, so that lessees, life tenants, adverse possessors who have not yet acquired title, and holders of defeasible fee simple titles may create easements that burden their estates. However, these easements do not burden the future interests (reversions, remainders, or rights of entry) held by others in the same property. When property is owned by cotenants, all cotenants must join to create an easement.