Should a property-rights policy include easements? If so, which ones and how? Here’s a draft policy…post your comments below; look forward to your input.

• Easements
  • CCL recognizes property easements.[1]
  • Such easements can be either negative or affirmative.[2]
  • Easements come into existence either by implication[3] or by prescription.[4]
  • If the dominant estate is sold or otherwise transferred to another, the easement appurtenant over the servient estate transfers with it.
  • Easements in gross[5] are not transferrable unless transfer is specifically authorized in the document creating the easement.

All easements attached to properties are required to appear in title records and property disclosures.

[1] Definition: An “easement” is a nonpossessory interest in another’s land/space that entitles the holder only to the right to use such land/space in the specified manner. An “easement appurtenant” attaches to the land/space and benefits its owner. In order for it to exist, there must be two pieces of land/space owned by different individuals. One piece, the “dominant estate,” is the land/space that is benefited by the easement. The other piece, known as the “servient estate,” is the land/space that has the burden of the easement.

[2] Definition: An “affirmative easement” entitles the holder to do something on another individual’s land (e.g. drive over, use of spring water, entry to make repairs on a fence or slide area, drive cattle across, etc.).

Definition: A “negative easement” divests an owner of the right to do something on the property (e.g., restrictions on buildings, restrictions on blocking view, restriction on hunting wildlife or using natural resources in certain ways, etc.).

[3] Definition: An “easement by implication” occurs when the owner of a piece of land/space divides such land/space into smaller pieces and sells a smaller piece to another person, retaining a right to enter such piece of land/space. (E.g., a seller divides his or her property and sells half to a purchaser, and the piece that the purchaser buys has a sewer pipe beneath it that serves both pieces of property. The seller has an implied easement to use the sewer pipe that runs under the purchaser’s land.)

[4] Definition: An “easement by prescription” arises through homesteading. If the adjacent property is unowned, this kind of easement comes into existence after three years of regular appropriation. (E.g., A company homesteads an area of land and creates an airport that emits noise through other unowned lands. Three years later, people come to the area and homestead adjacent land to the airport. The company has created an easement—the right to emit airplane noise—through the people’s land and is therefore not liable to committing a nuisance.) If the adjacent property is owned, this kind of easement comes into existence under the following conditions (a) after three years of appropriation; (2) the easement is either with or absent the permission of the landowner; (3) it is observable; (4) it is continuous and uninterrupted; (5) the (potential) servient estate owner has not complained of nuisance. If these conditions are fulfilled, the easement must then be documented in the title records in the CCL Digital Network.

[5] Definition: An “easement in gross” is not appurtenant to any estate in land. It arises when a servient piece of land exists without a dominant piece being affected. This type of easement is ordinarily personal to the holder.