The difference between a license and an easement is that easements refer to the permanent right of use or interest over another's property. It is the non-possessory property interest that the benefit party holds in a land that is owned by the burdened party, which entitles the interest holder to enjoyment or limited use of that land.

Easements fulfill the need to use a property at another's expense. Since an easement is simultaneously a burden to the property owner (the servient) and of benefit to the holder, it will significantly affect the value of the individual properties. As such, the true extent of an easement must be clearly understood.

Creation of Easements

Since an easement expresses actual interest in the land, the statutes of fraud are applicable and an easement grant must be written, either as reservations in a deed or a separate deed. Easements can also be created by:

  • Prescription
  • Implication
  • Necessity

Most easements are created via express grant, consequently requiring the drafter to clearly express the duties and rights associated with it. Easements can be either negative, such as restrictions on fence height, or affirmative, such as the right of way to cross a property.

Duration of Easements

The duration can be formed for different lengths of time — months, or years, or even for life. The duration could also be perpetual — meaning that it will continue in effect until it is terminated by an operation of the law or an act of the participating parties.

Litigations Involving Easements

Most litigations that involve easements result from failure to properly define the things that the granted land can be used for, the party that is responsible for upkeep and repair, or the floating easement problem, i.e. the failure of the servient to properly outline the easement area.

If an easement was created for right of entry, it may be inappropriate to use it for laying of utility lines. If an easement that is created by grant as a right-of-way has no specific width, it is assumed that the width is one suitable for free, ordinary passage.

Classification of Easements

Easements are classified as either appurtenant or in gross. An easement appurtenant is a right in the servient's estate that attaches to and benefits the dominant estate (the owner's land). Such an easement is passed along with the land and transferred by means of conveyance. Easement in gross isn't passed along with the land and doesn't attach to or benefit the dominant estate. It is personal in nature.

Definition of License

A license refers to the authority or permission to perform a particular action on another's property or land, usually on a non-exclusive basis. It is a non-assignable and revocable right that is not regarded as an interest on the land. It is personal and any attempt to transfer it will cause its termination. In some cases, licenses are hidden within other agreements such as a memorandum of understanding.

Creation of Licenses

The creation of a separate license is recommended when a right to use the space of another party is part of a larger agreement/relationship. Such a separate license must be attached to the more general agreement as an exhibit. If the right to use the land of another party is given verbally, it is usually considered as a license, not an easement.

Unless rendered irrevocable by estoppel, the landowner can revoke the right at any time. Such a license is revoked if the licensor sells the land or on the death of either party.

Take for instance a property owner who gives permission to a friend to use the property for hunting. He is in effect giving a license to the friend to make use of the land.

Also, if a landowner erroneously builds a wall that encroaches past a boundary line separating his property from his neighbor's, he should obtain a license (which may be paid for) from the neighbor that allows him to leave the wall as is. Such an arrangement can be abridged and couched within a formalized encroachment agreement that must be recorded and signed.

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