Easements and Exits---Using your neighbor’s property as an exit

You purchase a parcel of land and notice that the only way off of your property is by going over your neighbor’s property. The real estate agent tells you not to worry because you have an “easement.” You then start to wonder, “What is an easement and do I really have the right to enter and exit my property by going across my neighbor's property?” If you do not have any reasonable alternative for entering and exiting your property other than going across your neighbor's property, you have an easement for right-of-way. An easement means the right to make affirmative use of another's property.

In your case, the affirmative use of your neighbor's property would be to enter and exit your property. This is an affirmative easement because your neighbor's property must permit something to be done to it, such as your right-of-way to enter and exit your property. Since the right to enter and exit your property is indispensable to the enjoyment of your property, this right-of-way easement would also be an easement by “necessity”. Since you are making affirmative use of your neighbor's property, your property is called the dominant estate or dominant tenement. Your neighbor's property is called the servient tenement or servient estate because it is the property burdened by the easement.

The extent of the easement is determined by its terms or the nature by which it was acquired. In other words, if there is a designated path across your neighbor's property for entry and exit to you property, you would not be able to unilaterally expand that area to include more of your neighbor's property because that would place too much of a burden on your neighbor's property.

However, you do have the right to enforce the easement by filing a lawsuit. Your or your neighbor can record the easement in the County Recorder's office. Recording the easement provides notice of its existence to future owners of both your property and your neighbor's property. The easement will continue until an event occurs that extinguishes the easement.

Easements can be extinguished in several ways, depending on your state’s property laws. The first is through ownership. The easement is extinguished if your property and your neighbor's property are both owned by the same person. Second, the easement is extinguished if your neighbor's property is destroyed. A third way is through over use or abuse of the easement. If you perform some act on either your property or your neighbor's property which is incompatible with the nature or exercise of the easement, the easement could be extinguished. For example, if the path across your neighbor's property is used for walking and you start driving vehicles across it or start using it as a parking lot, this incompatible use would extinguish the easement because it overburdens your neighbor's property. Finally, the easement can also be extinguished by abandonment. Abandonment occurs when you don't use the path for the statutory period of time.

State laws will vary on how and when you can enjoy the easement, how an easement is ended, and how and easement is enforced. Before you take any drastic self-help remedies, consult with an attorney who specializes in property law to find out what rights and remedies are legally available to you in your state.