Easements are non-possessory rights to use the land of someone else for a specific purpose. Often, the easement "runs" with a parcel of land so that you can use someone else's land for that purpose only as long as you are the owner of a particular property. The property that is given the benefit of an easement is the dominant estate, while the estate that is burdened is the servient estate. There is a judicial preference for this type of appurtenant easement. However, an easement may be in gross, in which case the easement does not transfer with title but belongs to an individual. Easements may be perpetual or temporary. They are assumed to be perpetual unless the duration of the easement is specified in the document that grants the easement. If you are concerned about a temporary easement, the Boston real estate attorneys at Pulgini & Norton may be able to advise and represent you.
Temporary EasementsEasements are typically created by conveyance in a deed or another written document, and usually a signature and a proper delivery of the document are needed. In certain circumstances, however, a court implies an easement as a matter of law.
An easement that was established for a special purpose or an implied easement based on necessity is temporary, and usually its duration is terminated once the purpose is accomplished or the necessity vanishes. Easements of necessity are usually implied so that a property owner can have access to a landlocked parcel. For example, a parcel of real estate may need to use a driveway that passes over a neighbor's parcel in order to access a public road. This could be because the two parcels were once one parcel that was divided in half, or because a subdivision was poorly planned.
A temporary easement might be used for the purpose of providing access to a dominant estate during construction work. When the construction work is complete, the easement's purpose is also complete. A temporary easement can also be terminated if the individual who holds the easement releases his or her right to the easement in writing. It can also be terminated through abandonment, although generally nonuse does not mean that an easement has been abandoned. A public authority's condemnation of an easement can also terminate an existing easement.
Each easement is different. In some cases, written documents establish the precise duration or scope of an easement, but in many cases the language is vague or imprecise. If you are granting an easement, it is wise to retain an attorney to draft the document so that it expressly provides for whether the easement is permanent or temporary.
Generally, as long as there is an easement, the easement holder is entitled to do whatever is reasonably necessary to enjoy the purpose for which the easement was granted, as long as he or she does not unduly affect the servient parcel. What is an undue burden? It depends on the particular situation. If a dominant estate using a driveway that passes over the servient estate is put to use as a business property, that could create significant traffic, and that might be an undue burden. In such cases, the servient estate’s owner may go to court to try to get an injunction or another remedy.
Consult an Experienced Real Estate Attorney in BostonAt Pulgini & Norton, our Boston real estate lawyers understand how to grant a temporary or permanent easement and can draft the relevant documents. Our firm advises and represents people in Hyde Park, Malden, New Bedford, and other cities in Massachusetts. Call our property transactions attorneys at 781-843-2200 or contact us via our online form for a free consultation.