An Introduction to Easements

In the last few months, the Land Court has rendered a notable amount of decisions in cases involving easement disputes. These cases reflect that the law of easements in the Commonwealth is alive, well, and well litigated. Considering that many residential properties are in some respect burdened or benefited by at least one easement, and that disputes over the same arise fairly frequently, this article provides a basic guide to easements in Massachusetts.

What Exactly is an Easement?

An easement is simply the right to use land owned by another. The party benefited by the easement has a non-possessory legal interest in real property, meaning that she can make certain use of that land, but she cannot claim to possess the same. Put another way, the owner of the land burdened by the easement, known as the “servient” estate, cannot exclude the easement holder from making reasonable use of the easement.

An easement can also be expressed as the right to prohibit certain use of land owned by another. This is sometimes referred to as a “negative” easement, such as where a property owner holds a “view easement” over her neighbor’s land prohibiting any use of that land obstructing the property owner’s view, or where a land trust has obtained a “conservation” easement preserving a parcel of land from future development.

An easement is more than mere license (permission by the owner) to use or access property. Unlike an easement, a license is not an interest in real property and may simply be withdrawn or revoked by the property owner.

While the types, characteristics, and uses of easements are as varied as other interests in real property, easements generally fall into one of two categories. An “appurtenant” easement benefits a particular property, known as the “dominant” estate, regardless of who holds title to that property. For instance, an easement that runs from a road across Lot A to Lot B is “appurtenant” to Lot B, the dominant estate. No matter how many times Lot B is sold, its owners can always make use of the easement to access Lot B from the road. In contrast, an “in gross” easement is a personal right granted to a particular individual (such as the right given to a particular person to access a fishing pond, or to maintain a billboard, on another’s property) regardless of whether individual benefited by the easement owns any property.  

How are Easements Created?

Express Easements 

Easements are typically created and conveyed by deed, by a plan referenced in a deed, or by written agreement that complies with the formalities of a deed. These are “express” easements, and may described by reference to a particular use or by a metes and bounds description. For example, the common owner of Lot A and Lot B, adjoining lots, may sell Lot A by deed that “reserves to Lot B the right to use a 30 foot wide right of way across Lot A for the purpose of accessing” a road on the far side of Lot A. Or the deed may convey Lot A “subject to easements depicted on” a particular plan recorded in the local registry of deeds.

Easements by Operation of Law

Easements may also arise by operation of law, which is why the existence, location, and scope of alleged easements are frequent subjects of litigation. An easement “by implication” arises when it becomes reasonably necessary for the continued use and enjoyment of a landlocked parcel. The basic fact pattern giving rise to an easement by implication is as follows:

Owner of a large parcel subdivided and sold off the land in such a manner that a particular lot, Lot A, is now “landlocked.” In other words, Lot A is entirely surrounded by other properties which must be crossed to access the nearest road. The law presumes that the Owner did not intend to render Lot A useless when she subdivided and sold off the surrounding land, and therefore implies an easement across a surrounding property connecting Lot A with the road.

Yet even this simple fact pattern begs the questions: where exactly is the implied easement to be located” What if neighboring Lots B, C, or D, all sit between Lot A and the road? Which lot is to be the servient estate? How wide of an easement is necessary to render Lot A useful? How often may the owner of Lot A travel through the easement, and what other uses are to be made of the easement?

One may acquire an easement “by prescription,” where one’s use of another’s land has been open (i.e. obvious), notorious (i.e. generally known), continuous (i.e. uninterrupted), and adverse to the true property owner (i.e. non-permissive) for a period of at least 20 years. For those familiar with the doctrine of adverse possession, a prescriptive easement is similar in concept, except that use of the property has not been exclusive to the adverse user, who therefore does not acquire title to the underlying property. The extent, location, and scope of an easement arising by prescription are fixed by the use through which it was created. For example, prescriptive easement rights frequently arise where driveways have been inadvertently laid out across property boundaries. One who has obtained a prescriptive easement to drive his cars across a portion of his neighbor’s property would exceed the scope of his rights if he were to attempt to install landscaping thereon, or to if he were to begin deviating his path of travel by an unreasonable amount.

While the subdivision process usually ferrets out the need for easements by implication, and there are many tools a property owner can deploy to prevent the acquisition of a prescriptive easement, these matters are heavily litigated in Massachusetts, a densely populated state with relatively high property values.

Have a Question about an Easement?

If you have a question concerning your rights with respect to an easement on your property, or your use of an easement on another’s property, give us a call. Our office has over 35 years of experience in providing guidance and representation to Massachusetts property owners.