First, an idea of what an easement is would be helpful. An easement is a right of access to the real property of another. Frequently, this exists as an easement for a utility, such as electric wires, gas lines, cable lines, or sewage hookups. Each of these take up part of the space of an individual’s property. However, the utilities have negotiated with and been given the right to place their equipment on the property. By virtue of the easement, the Utility Company can come onto the property to check monitoring devices, provide maintenance, and other aspects as provided in the easement.
Easements are generally created in one of two ways. The first, like most utility easements, is by a contract or agreement with the property owner. For a utility, the easement was most likely granted by a developer and then recorded as part of the property. Alternatively, an easement can be granted by repeated use over time. Such an easement is called a prescriptive easement.
This prescriptive easement highlights an important policy concept with real property, which is mirrored through adverse possession. The process of creating a prescriptive easement is by the person who will be given the right to continue to use the property without compensating the owner. Ownership of real property is a big issue, with laws and courts repeatedly protecting absolute ownership. Yet, if real property is not protected by the land owner or is not used in some way, another person can take the rights to the property. The law wants real property to be used and in use. It creates a tension between use of property and ownership of property, especially when the property owned is large.
The concepts associated with easements are key issues with all forms of real property ownership. Entire properties can be adversely possessed and transferred by operation of law away from a property owner. The right to enter onto land for a specific purpose can be granted by selling mineral or oil and gas rights. A landowner may be limited by the easement granted to a neighbor for a pathway, just the same as a covenant in the deed can limit a landowner.
When all is said and done, real property can be a difficult issue. Not only because competing interests can create strange results, but because the laws very by state. A prescriptive easement in one state could only be established after ten years while another state may require twenty years of proof. In dealing with real property be sure to ask questions, otherwise there may be trouble.