Easements are the right to use the land of another for a special purpose. Unlike a lease, an easement does not give the holder a right of “possession” of property, only a right of use. There are several reasons easements are granted. Most properties in a city, for example, contain a utility easement that allows utility companies to construct and maintain overhead or underground electric, telephone and cable television lines. The property owner owns all of the land, including the land that is subject to the easement; however, utility companies have a right to access that portion of land which has been designated as subject to the utility easement. Another reason an easement might be put in place is to grant access to an adjacent area. For instance, a property owner whose land abuts a public road can grant access through their property to a neighbor whose land does not physically connect to the public road. Easements usually become part of the land records of the property. In the case of an access easement like the one just referenced, in most cases it would be recorded with the land records for both properties. Once an easement is put in place, it stays with the property even if the property is sold or otherwise transferred to a different owner.
The easement may contain restrictions on what the landowner is allowed to do on the part of the property subject to the easement. For instance, with utility or access easements, the landowner is usually prohibited from building structures in the easement area, or conducting activities (erecting a fence, for example) that would hinder access.
Although easements transfer to new owners, there are ways that easements can be removed. It usually takes some overt legal action or procedure to remove an easement. It may depend on whether an easement is a “public” easement (a right granted to a governmental agency, such as for road right-of-way) or a “private” easement (and agreement between private parties). Public easements can only be removed by the government agency’s decision-making body, such as elected city council or county supervisors. Removing private easements generally requires filing an easement termination document with the land records of the parcel.
Mark Apel, University of Arizona
