An easement is a right to cross or otherwise use someone else’s land for a specified purpose. It is a non-possessory interest in land that allows the holder of the easement to have access to or use the property belonging to someone else. In Ohio, easements can be granted in writing by agreement between the parties. The easement is then recorded with the county recorder. The dominant estate is the parcel of real property that has an easement over another piece of property (known as the servient estate).
When certain requirements are met, there are other ways an easement can be created. In Ohio, there are 3 types of these easements: an easement implied by prior use, an easement implied by necessity, and a prescriptive easement.
Easement Implied by Prior Use
An easement implied by prior use is established by satisfying 4 elements.
- A severance of the unity of ownership in an estate. This occurs when one owner sells only part of his whole property to another resulting in property that was once owned by one owner, now has part of it owned by another.
- Before the severance, the use giving rise to the easement shall have been so continuous and obvious that it appeared to be permanent.
- The easement must be reasonably necessary to the beneficial enjoyment of the land granted or retained.
- The use of the property that is the subject of the easement is continuous, rather than temporary or occasional use. *
Easement Implied by Necessity
An easement implied by necessity requires proof that there is no other way to get to and from the property, even if the way of getting to and from is less convenient and would require great expense and work to make it serviceable.
Prescriptive Easement
In order to obtain a prescriptive easement, a landowner using adjacent property must prove, by clear and convincing evidence, that such use was open, notorious, adverse to the neighbor’s property rights, continuous, and in place for at least twenty-one years. A prescriptive easement cannot exist if the landowner gave permission to use the property in question because it is not adverse to the landowner’s rights. (See more about adverse possession here).
The laws pertaining to easements are complex. Easement agreements can be difficult to understand and disagreements over easements can be difficult and costly to resolve. At Richter Law, we can help you review easement agreements and assert and protect your rights in easement disputes.
*See Kiko v. King Mountain LLC, 7th Dist. Monroe No. 14 MO 9, 2015-Ohio-2688
