An easement is a nonpossessory right to use or restrict the use of another owner's land for a defined purpose, such as access, utilities, or drainage. The holder gains a limited legal privilege without owning the land, and the burdened parcel, called the servient estate, remains owned by someone else who cannot obstruct the granted use.
What Is an Easement?
An easement is a legal right that lets one party use part of another party's land for a specific purpose without owning it. The parcel that benefits is the dominant estate; the parcel that is burdened is the servient estate. A recorded easement runs with the land, binding future owners of the servient estate until it is released, abandoned, or otherwise terminated.
Easements are created several ways. An express easement is written into a deed or a signed agreement and recorded. Others arise by implication, by necessity when a parcel would otherwise be landlocked, or by prescription. A prescriptive easement forms when someone uses land in a way that is open, notorious, adverse, and continuous for a statutory period, which per FindLaw and PropertyMetrics ranges from about 5 to 20 years depending on the state, for example 5 years in California and 10 years in Washington.
Creation method | How it arises |
Express | Written into a deed or agreement and recorded |
Implied | Inferred from prior use when a parcel is divided |
Necessity | Granted so a landlocked parcel has legal access |
Prescriptive | Earned by open, adverse, continuous use for the statutory period |
Why Easements Matter
Easements matter because they can add value to a parcel or quietly subtract from its usable area and future development potential. An access easement can be the only thing that keeps a rear parcel from being landlocked, while an unrecorded utility easement across a building footprint can block the expansion an underwriting model assumed. Either way, the easement travels with the land to the next owner.
The underwriting discipline is to find every easement before closing, not after. A recorded easement is disclosed in the title commitment and plotted on an ALTA survey; a prescriptive or implied easement may not appear in either and surfaces only through inspection or a neighbor's claim. Because an easement can permanently reduce a site's buildable area, the operator who prices it during due diligence keeps a hidden burden from becoming a post-closing loss.
Example
An easement changes what a buyer can actually build, and the math is concrete. A developer is acquiring a 1.0-acre commercial lot, which is 43,560 square feet, planning a building that needs the full pad. Due diligence turns up a recorded utility easement running along the rear of the lot, 15 feet wide and 200 feet long, inside which no permanent structure may be placed.
Item | Value |
Total lot area | 43,560 sq ft |
Easement footprint | 15 ft x 200 ft = 3,000 sq ft |
Usable building area | 43,560 - 3,000 = 40,560 sq ft |
Share of lot burdened | 3,000 / 43,560 = 6.9% |
The easement removes 3,000 square feet, or about 6.9 percent of the lot, from the buildable area. The developer either redesigns the footprint to clear the easement or renegotiates price to reflect the lost density. Discovered before closing, it is a design and pricing input. Discovered after, it is a stranded cost with no recourse.
Variations and Edge Cases
Easements vary by whom they benefit, how they are created, and whether they can be transferred. The variants below show where the standard easement behaves differently.
Variant | Treatment |
Easement appurtenant | Benefits an adjoining parcel; runs with the land to future owners |
Easement in gross | Benefits a person or entity, not a parcel; often a utility right |
Affirmative easement | Lets the holder do something on the servient land, such as cross it |
Negative easement | Restricts the servient owner, such as barring a view-blocking structure |
Prescriptive easement | Acquired by adverse use, so it may not appear in recorded title |
Easement vs Encroachment
An easement is often confused with an encroachment, and the difference is permission. An easement is a legal, usually recorded right to use another's land for a defined purpose. An encroachment is an unauthorized intrusion onto another's land, such as a fence, wall, or building overhang that crosses the boundary line without a granted right.
The easement is consented to; the encroachment is not. An easement is a priced, insurable interest that runs with the land. An encroachment is a defect that must be cured, whether by removal, by a negotiated easement that legalizes it, or by a boundary agreement. An ALTA survey plots both, which is why buyers order one before closing a commercial deal.
Frequently Asked Questions
What is an easement in commercial real estate?An easement is a nonpossessory right to use another owner's land for a defined purpose such as access, utilities, or drainage. The holder gains a limited legal privilege without owning the land, and a recorded easement runs with the land, binding future owners of the burdened parcel.
What is the difference between an easement appurtenant and an easement in gross?An easement appurtenant benefits an adjoining parcel and runs with the land to future owners of that parcel. An easement in gross benefits a specific person or entity rather than a parcel, such as a utility company's line, and is generally not transferable unless the agreement permits it.
What is a prescriptive easement?A prescriptive easement is one earned by using another's land in a way that is open, notorious, adverse, and continuous for a statutory period. That period ranges from about 5 to 20 years depending on the state, and the resulting easement may not appear in recorded title.
Related Terms
ALTA Survey
Zoning
Due Diligence
Title Insurance
Ground Lease