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Concept
Easement
Summary
An easement is a nonpossessory 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". An easement is a property right and type of incorporeal property in itself at common law in most jurisdictions.
An easement 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 access 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.
The rights of an easement holder vary substantially among jurisdictions.
Historically, common law courts would enforce only four types of easement:
Right-of-way (easements of way)
Easements of support (pertaining to excavations)
Easements of "light and air"
Rights pertaining to artificial waterways
Courts now 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 property for a specific purpose while a negative easement is the right to prevent another from performing an otherwise lawful activity on their own 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 land owner A from putting up a wall of trees that would block the adjacent land owner B's mountain view. A is subject to a negative easement from B.
Dominant estate and Servient estate
As defined by Evershed MR in Re Ellenborough Park [1956] Ch 131, an easement requires the existence of at least two pieces of land. The land with the benefit of the easement is the dominant estate or dominant tenement, while the land burdened by the easement is the servient estate or servient tenement.
Official source
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