Real Estate Alphabet Soup: E is for Easement and Eminent Domain

Miles & Stockbridge P.C.

In my last post, “Real Estate Alphabet Soup: D is for Deed” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “E.”

E is for “easement.” An easement is a right, created by either express or implied agreement, of one land owner (the servient estate) to allow another land owner (the dominant estate) to have lawful use and benefit of its land for the specific purpose stated. There are many types and forms of easements, both express and implied, affirmative and negative, public and private, prescriptive and by necessity.

An “express” easement is a written agreement that expressly states the right to use the land of another. The written easement agreement should be recorded in the public land records of the county in which the property is located in order to put others on notice of the existence of the easement. Since an easement creates a form of “encumbrance” on the servient property, a lienholder’s consent may be required prior to the granting of an easement, since the easement has a potential negative impact on the lienholder’s collateral or interest in the servient owner’s property.

An “implied” easement is an easement that is not expressly created but, rather, is implied to be granted at the time property is transferred to another, as created by the prior continuous and apparent use of the servient property for that purpose.

An “affirmative” easement is an easement that allows the owner to do affirmative acts upon the other’s property, such as a right of way to access a property. Conversely, a “negative” easement restricts or prevents an owner from doing certain acts upon land that he or she would otherwise be entitled to do (in some ways similar to a “restrictive covenant”).

A “private” easement is an agreement between private property owners. A “public” easement, by contrast, is one for the use, benefit and enjoyment of the public, such as a sidewalk, street, alley or public way, or a public pier or beach access.

A “prescriptive” easement is one acquired through the uninterrupted use of a property by another for the requisite statutory period of time necessary to satisfy rights of adverse possession. In Maryland, the open, notorious, continuous and uninterrupted use of a property for twenty years with the knowledge of the owner creates a right to a claim of adverse possession of a property or a prescriptive easement to continue to use the property for that same purpose.

An easement by “necessity” is an easement which becomes necessary for the continued use of a parcel of land when a larger tract of land is subdivided, and a parcel carved off of the larger tract of property becomes “landlocked” without access to a public way, thereby creating a necessity for the easement to provide continued access to and from the property.

E is also for “eminent domain”, which is the right of the state or a sovereign, to take private property for a public purpose. Often referred to as a “taking”, the state must compensate the owner for the value of the property “taken” since there can be no “taking” without “just compensation.” And the proposed use of the land by the state or sovereign must be for a legitimate public purpose. Because of the significant impact on private property rights, the law of “eminent domain” and decisions over what is or is not a valid “public” purpose to justify the “taking” of a private property is an ongoing debate and subject of frequent litigation.

In my next post, I will move on to the letter “F”, the next letter in this real estate “alphabet soup.”

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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