The Tennessee law of easement frequently comes into play in conflicts between two adjacent property owners. Easements are a particularly nuanced area of practice, so if it’s something that you’re considering, it’s important to have your facts straight. We’ll start with the basics…
What Is An Easement?
An easement is an interest in property that determines the right to use land that is owned by somebody else for a specific purpose. The owner of the land will, of course, retain the legal title to the property, but the easement holder will also be permitted to use a very specific portion of their land for the purposes outlined in the easement. Easements arise in a variety of ways, including through a traditional real estate transaction. In such a transaction the property owner will usually have to be compensated by the easement holder. The value of this compensation, as well as the scope of use, will have to be negotiated before an easement can go into effect.
Distinctions Between Different Types of Easements
Easements are an extremely situational area of real estate law, so it is important to be clear on the distinctions between different types of easements. The type of easement depends entirely on the nature of the property and the relationship between the property owners. There are essentially two main ways to look at easements.
Distinction 1: Public Easements v. Private Easements
Public Easements
Public easements are defined by the fact that they are for the benefit of the general public. Generally, with public easements, the easement holder is either the local government, or a statutory entity like a utility company. Local governments will commonly take easements for the sake of public projects such as roadways, sidewalks, and public parks. Utility companies will often require specific access to private property for building power transmission lines, water lines, sewer lines, general maintenance of public property, and other activities that are for the good of the general public. Public easements may be acquired by a statute, negotiation with a property owner, or by eminent domain.
Private Easements
Private easements are interests in property owned by private parties, usually involving adjacent properties. There are many instances where this can occur, including driveways, ingress and egress (coming and going from a property), fence lines, agreements to farm or cut timber, and the like. The key to private easements is that they do not affect anybody besides the two property owners who enter into the easement.
Distinction 2: Express Easements v. Implied Easements
Express Easements
The defining characteristic of an express easement is the fact that it is in writing. The two parties involved can use the easement to address any issue that may be in play, but once the easement is finalized, it will be permanently written into the deed of both properties. In the future, when the property is sold, the easement is usually sold with it. Of course, easements can also be written that are only temporary and do not transfer when the easement holder sells the property. It is all a matter of negotiation.
Implied Easements
The other side of this coin, implied easements are defined by the fact that they did not originate in writing. There are very specific instances where an easement can arise by implication. They are as follows:
- Easements by Necessity: Courts will imply an easement by necessity when the use of one parcel of land depends on using a portion of an adjoining parcel of land. For example, when one parcel is landlocked and can only be accessed by crossing another parcel, courts will often recognize an easement by necessity. However, it’s important that when the easement is finally written, it is explicitly recorded on the deed to the property. This way, in the future it will be an express easement.
- Easements by Prior Use/Prescriptive Easements: Implied easements can also arise from continuous prior use. One example is a prescriptive easement, which arises when someone uses another’s property in a way that is open and obvious for a period of at least 20 years. In these cases, the other property owner must have been aware of this use, but have done nothing about it.
Need More Help?
We understand. Real estate law is extremely complicated, and negotiating an easement is an especially nuanced area within the field. But, at Rochford Law & Real Estate Title, we’ve got your back. If you need legal help with a real estate transaction in the Nashville area, get in touch with us today!
