Joseph G. Ballstaedt
An easement is the right to use another person’s land. In Utah, easements can be created in a variety of ways, including by expressly giving an easement, by implication, by necessity, and by adverse possession (a prescriptive easement). This article discusses express easements (the most common type of easement), including how they are created, the rights they can grant, and how they are modified or terminated.
Creation of Express Easements
To be valid in Utah, an express easement must be granted in a written document that (1) satisfies the statute of frauds and (2) indicates the parties’ mutual agreement to be bound by the terms of the easement, whatever those terms may be.
As to this first element, the statute of frauds explains that a contract conveying an interest in land, such as an easement, is void unless the contract, or some note of memorandum evidencing the contract, is signed by the party against whom the easement is sought to be enforced. For example, if an owner states in a conversation that the neighbor has an easement on the owner’s land, the neighbor may not be able to enforce and use that easement unless the owner also signed some type of document explaining the easement.
In addition to these two elements, an express easement, like all contracts, must contain “consideration.” Consideration is a legal term that means that the parties bargained for a benefit, such as the right to cross another’s land (a type of easement) in exchange for payment. If both parties do not receive a benefit, consideration may not exist, and the parties’ attempt to create an express easement may have failed.
Different Rights Under Express Easements
An express easement is different than a conveyance of title to land. When granting an easement, the owner of land conveys to another the right to use its land but still retains ownership of the land. That use granted is not any type of use but rather only a specific and limited use stated in the easement document. An easement might, for instance, allow a person or city to run utilities across an owner’s property or a person an access easement—the right to cross the owner’s land to access a landlocked piece of land.
Each easement is different and provides different types of rights and restrictions. Below are a few different types of easements that define different types of rights.
- Affirmative Versus Restrictive Easements. Easements can be affirmative easements or restrictive easements. For example, an access easement is an affirmative easement that allows a party to affirmatively access the land of another, but a negative easement is a restriction on a landowner’s ability to use its land—a promise not to use the land in a certain way, such as a promise not to build any type of structure that would block a neighboring property’s view.
- Perpetual Easements Versus Easements Limited in Time. Easements can be granted for a limited period of time or for perpetual use—i.e. for forever. For instance, perhaps an owner is willing to allow a neighbor to use its land for access purposes until the neighbor builds its own access road. The owner may be willing, in this case, to grant a five-year easement to allow time to build the access road, but not a perpetual easement lasting forever.
- Personal Easements Versus Easements Running with the Land. An express easement can be granted to a person (referred to as an “easement in gross”) or the easement can run with and be attached to the land (called an “easement appurtenant”). A personal easement (or easement in gross) is an interest by a specific person in the land of another and is not assignable or transferable to any other person. A personal easement ends when the person granted the easement dies. On the other hand, an easement appurtenant runs with the land and can be transferred to another party. For example, if there is a landlocked property, the owner of the landlocked property can obtain an access easement on a neighboring property that runs with (or is attached to) the landlocked property, not to any person. The neighboring property becomes the “servient estate.” That land is doing a service to the landlocked property, which is called the “dominant estate”—or the land that benefits from the access easement. If the owner of the landlocked property sells that land, the buyer continues to benefit from the access easement since it is an easement appurtenant.
Modifying and Terminating Express Easements
As stated above, some easements end after a stated duration, but some easements are perpetual and last forever. If an easement is perpetual, it can generally be modified or terminated by a later agreement between the parties who agreed to the easement. Also, an express easement’s terms may allow for modification or termination without the consent of all the parties. A change may be permissible if approved by a specified percentage of the parties involved, at the discretion of a single party, or when a specific condition occurs. For instance, the parties may agree to an access easement on private land until a public road is built, or a servient estate (the party burdened by the easement) may have the right to revoke an easement at any time or after a specified time.
Sometimes, modification and termination are subject to third-party approval. For instance, if a developer obtains city approval for a development by imposing a restrictive easement on the community that states that no owners can build within 50 feet from a floodplain without the city’s approval, even if future owners agreed to a reduction of 25 feet, the city would need to agree to that change.
Help with Easement Issues
This article does not address every issue related to express easements or disputes that can arise from express easements. If you have any questions about easements or if you are involved in a dispute involving an easement—or if you have any other questions involving real property legal issues, I am happy to help. I offer a free consultation. My direct dial is 801-365-1021, and you can e-mail me at firstname.lastname@example.org.