Mistaken Identity — Easement vs. License

An easement is a permanent right in property, whereas a license, which is not an interest in property, is a temporary right to use that property and may be revoked at any time.

Easement — A nonpossessory (incorporeal) property interest (short of an estate) that one person (the benefited party) has in land owned by another (the burdened party), entitling the holder of the interest to limited use or enjoyment of the other’s land. An easement fulfills the needs of one property at the expense of another.

Because an easement is an actual interest in land, the statute of frauds applies and an express grant of easement must be in writing, usually in the form of a separate deed or a reservation in a deed. Thus, an easement is an interest in land rather than a mere contractual agreement. Easements are also created by necessity (as in landlocked situations), by implication, or by prescription. Because the easement is both a benefit to the holder and a burden to the servient property owner, it significantly affects the value of the respective properties and the extent of the easement should be clearly understood. Most easements originate by express grant, so the drafter should clearly express the rights and duties associated with the easement. An easement can be an affirmative easement, such as a right-of-way to cross the property, or a negative easement, such as a restriction on fence height. It can also be created for different periods of time–for a term of months, years or for life.

Easements are classified as either appurtenant or in gross. An easement appurtenant is a right in another’s land (servient estate) that benefits and attaches to the owner’s land (dominant estate). An easement in gross is personal in nature and does not pass with the land because it does not benefit or attach to a dominant estate.

Litigation involving easements usually results from the initial failure to adequately define the easement area (the floating easement problem), the uses to which it may be put, or which party has responsibility for repair and upkeep. An easement for access purposes might not be appropriate for later use to lay utility lines to the property. When an easement or right-of-way is located by a grant that does not define its specific width, such width is assumed to be one that is suitable and convenient for ordinary, free passage.

Easements should not be confused with profits or licenses. A profit is the right to take the soil, minerals, or products of the land. A license is not an interest in land, merely permission to use the land of another for some limited purpose; it can be revoked at any time.

License — Permission or authority to do a particular act on the land or property of another, usually on a nonexclusive basis. A license is a personal, revocable, and nonassignable right, but unlike an easement, it is not considered an interest in the land itself. If a right to use another person’s land is given orally, it is generally considered a license rather than an easement. The landowner may revoke such a right at any time, unless it has become irrevocable by estoppel. A license ceases upon the death of either party and is revoked by the sale of the land by the licensor. For example, a landowner who grants a friend permission to enter his or her property for hunting purposes thus grants the friend a license to use the land. If an owner mistakenly builds a rock wall across the boundary line so that it encroaches onto the neighbor’s property, the owner sometimes pays the neighbor for a license to keep the rock wall in place. This arrangement should be reduced to a formal encroachment agreement that is signed and recorded so that it runs with the land.