Exploring Types of Easements in Property Rights

An easement is a legal right that allows someone to use part of a property that he or she does not own. There are several different types, the most common being affirmative, negative, express, implied, permissive, prescriptive, conservative, preservative, continuous, discontinuous, apparent, non-apparent, permanent and limited, easement by necessity, quasi and customary easements. The various rights granted by each depend on the nature of its creation and its continued use.

An affirmative easement is one which gives a single person the right to use the property in question, and requires that the property owner allow that person access to his or her land.

An example is a property owner allowing his or her next-door neighbor to use part of his or her land as a driveway to access the neighboring property. A negative easement usually prohibits something. This type typically references architectural elements of a building on a property, such as barring the building of a structure higher than two stories.

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Homeowners’ associations usually have guidelines for neighborhood residents regarding architectural elements of homes, making negative easements rare in those areas. An express easement is one which must be stated within a legal document, such as a will or property deed. The implied type is not written in any legal document, but its use begins as a result of certain circumstances. These situations may include those in which a property is being divided between new owners and the original owner wishes to retain the right to use a portion of it for the original purpose.

A permissive easement is one that occurs with the express permission of the landowner and is not necessary for the enjoyment of the adjoining property. An example of this would be a roadway that a landowner allows others to use, but which is not the only access to the property. A property owner in such a situation may post signs stating that the use of the property is permissive and that this right may be revoked at any time. A prescriptive easement comes about without the permission of the landowner, and typically without his knowledge.

This type is necessary when an individual uses property that belongs to the land adjoining his, and gains permanent access once a certain amount of time has passed. A conservative easement is an agreement between the landowner and a second party — generally the government — not to develop a certain portion of the land, for ecological reasons. A preservative easement is one which usually protects against the development, or change, of aspects of a piece of property, such as a building located on the premises. It often protects historical landmarks.

Both of these types commonly qualify landowners for tax credits. Continuous and discontinuous easements: A continuous easement is one which may be enjoyed without an act of man. To act of man contemplated within the section is not the mere doing of an act necessary for facilitating the enjoyment of the easement. It must be an act on the serivent tenement. Thus the opening of a shutter for letting light and air it would not be such an act of man without which the easement could not be enjoyed, because such an act is not on the servient tenement.

The enjoyment of the easement of the easement can be continued without an act of man of the servient tenement. In the case of right of way every step a man takes is necessary for the enjoyment of the easement and such steps are all on the servient tenement. Without that act of man, enjoyment of the easement in question is totally impracticable. Thus an easement of light and air is a continuous easement. This is illustration (a). A right of way is a discontinuous easement. This is illustration (b).

There isdivergence of judicial opinion in country on the question whether the right to discharge water used for domestic purpose is a continuous or a discontinuous easement though a right to discharge rain-water is unanimously easement. Apparent and non-apparent easements: An easement is apparent if its existence is evidenced by some apparent sign, whether that inspection to everyone or whether it can only be perceived on a careful inspection by a person ordinary conversant with the subject. An easement is non-apparent if no external sign points to its existence.

For apparency to be material the apparency must be on the servient tenement. Permanent and limited Easements An easement may be permanent, or for a term of years of other limited period, or subject to periodical interruption, or exercisable only at a certain place, or at certain times, or between certain hours, or for a particular purpose, or on condition that it shall commence or become void or voidable on the happening of a specified event or the performance or non-performance of a specified act.