By Elliott Topkins, Esquire
11/10/11
Easements come in all shapes and sizes. Easements can be consensual and in writing, and there are times when easements are “prescriptive” and act in much the same manner as adverse possession.

A well drafted easement can give protection to abutting properties. A poorly drafted easement can give rise to disputes and bad feelings among neighbors.

Following are a few thoughts about easements, which you may one day find helpful to solve issues which arise affecting your real estate.

1. What is an easement? An easement is a right affecting property which affects usage but does not convey ownership, per se. For example, you may own two adjoining parcels of property and wish to sell one of them. Even though you are selling one parcel, you wish to have access to a body of water, or a path, or a street, so you put “reserving” language in the deed to the buyer, which permits you to continue to cut across the property which is sold. It is always better to accompany an easement like this with a surveyor’s plan, or at least a sketch, which locates the path in question and provides definition of the easement. This will prevent disputes at a later date.

2. Can you create an easement even if you are not selling or buying? The answer to this question is “yes” and many easements are created between adjoining property owners to permit driveway access or to define who would be responsible for maintenance and upkeep of a common driveway. Again, a well-defined and properly drafted easement can be used in the future to resolve disputes. That is why the easement is recorded at the Registry of Deeds and included in the property description when property is conveyed.

3. What is a prescriptive easement? Real property law recognizes long-standing patterns of behavior as creating interests in the people involved. For instance, is a person openly, continuously (for at least 20 years), exclusively, adversely and notoriously treats a property as if he, she or they owned it, an ownership of adverse possession may be created and the person who has done all the aforesaid things may end up the owner of property because of this long-standing pattern of behavior. Similarly, if a person does all of the things set forth above with respect to a foot-path or a driveway for a long period of time, that person may have established a “prescriptive easement” to continue the use involved. That is the reason that once every year, all of the gates in Harvard Yard in Cambridge are locked so as to show that there is one date when passing through Harvard Yard is not permitted, and, thereby no prescriptive easement is established.

As indicated above, easements can be useful tools for defining property rights, especially between abutting land owners. Like in any other aspect of conveyancing, it makes the most sense to involve professionals in putting together easements. Many extended lawsuits have begun because of uncertainty surrounding easements.

An ounce of prevention in easements will almost always produce the pound of cure.

(Mr. Topkins is an attorney with Topkins & Bevans, Braintree Executive Park, 150 Grossman Dr., Braintree, MA 02184. His blog can be found at http://realtorsresourceblog.com. His telephone number is 617/596-3184 and his e-mail address in etopkins@topbev.com.)