Millennials in Tech Are Boosting Easements and Licenses
The legal right to use someone else’s land for some limited purpose usually arises out of the user having either an easement or a license. A very common easement is one used for ingress and egress, meaning the right to travel over someone else’s property to reach one’s own property. Easements can also include such rights as the right to place utilities under someone else’s property, or the right to keep the airspace above someone else’s property free from obstructions.
Most easements affecting land are expressly written and recorded against the “servient” property encumbered by the easement. There are, however, other types of enforceable easements, the most common of which is a “prescriptive” easement, which arises when the person claiming such an easement has used the servient property in a manner that is “open, notorious and hostile” for a period of at least 10 continuous years, so as to give notice to the owner of the servient property that they are claiming the right to use the property in the manner being used.
Another easement (though it is less common) is an easement “by necessity,” which only arises when a party conveys a “landlocked” property to another without expressly granting a right of access to the landlocked property owner over the property of the grantor.
In addition to there being different ways in which an easement is created, there are also two distinct categories of easements: those that are “appurtenant” and those that are “in gross.” An appurtenant easement is one that is created for the benefit of the benefitted land itself, as opposed to for the benefit of the owner of the land, and is said to “run with the land,” meaning that it will continue to exist regardless of any subsequent conveyance of the benefitted or of the burdened land. An easement that is created for the personal benefit of a landowner is classified as an “easement in gross.” Such easements do not run with the land, and the party benefitted by such an easement typically may not transfer it to others.
License to Real Estate
In contrast to an easement, a “license” only gives permission to the license holder, known as the “licensee,” to do a specific act or acts on the property of someone else, in this case known as the “licensor.” The permission that is required in order to establish a license can be either written or oral; however, a licensee is always well advised to have the permission memorialized in writing, so as to avoid disputes regarding whether or not such permission was granted. Licenses normally do not “run with the land” and cannot be transferred, although that is not always the case. In addition, licenses, unlike easements, are usually revocable at the will of the licensor.
In that licenses arise out of the granting of permission by a licensor, and in that the existence of “permission” eliminates the “hostility” required to establish a prescriptive easement, no matter how long a license is used, it can never evolve into a prescriptive easement. In order to eliminate any ambiguity between landowners, it is always best for the parties to sign an agreement making clear the exact nature of the “rights” being granted by the landowner.
About the Author: David Allen, a partner in the Phoenix law firm of Jaburg Wilk, has been representing clients in both transactional and litigation real estate and business related matters for over thirty years. He is licensed as an attorney in both Arizona and California, and is also a licensed Arizona real estate broker. Got a real estate law question for David? Contact him directly.
Originally published on ASREB