Easement

An easement is a non-possessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". It is similar to real covenants and equitable servitudes; in the United States, the Restatement (Third) of Property takes steps to merge these concepts as servitudes.

Easements are helpful for providing pathways across two or more pieces of property, allowing individuals to access other properties or a resource, for example to fish in a privately owned pond or to have access to a public beach. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions.

The rights of an easement holder vary substantially among jurisdictions. Historically, the common law courts would enforce only four types of easement:

Modern courts recognize more varieties of easements, but these original categories still form the foundation of easement law.

An affirmative easement is the right to use another's property for a specific purpose, while a negative easement is the right to prevent another from performing an otherwise lawful activity on their property.

For example, an affirmative easement might allow land owner A to drive their cattle over the land of B. A has an affirmative easement from B.

Conversely, a negative easement might restrict A from blocking B's mountain view by putting up a wall of trees. A has a negative easement from B.

As defined by Evershed MR in Re Ellenborough Park [1956] Ch 131, an easement requires the existence of at least two parties. The party gaining the benefit of the easement is the dominant estate (or dominant tenement), while the party granting the benefit or suffering the burden is the servient estate (or servient tenement).

For example, the owner of parcel A holds an easement to use a driveway on parcel B to gain access to A's house. Here, parcel A is the dominant estate, receiving the benefit, and parcel B is the servient estate, granting the benefit or suffering the burden.

A private easement is held by private individuals or entities. A public easement grants an easement for a public use, for example, to allow the public an access over a parcel owned by an individual.

In the U.S., an easement appurtenant is one that benefits the dominant estate and "runs with the land", i.e., an easement appurtenant generally transfers automatically when the dominant estate is transferred.

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