Suppose you grant your next-door-neighbor permission to erect a fence across the property line on your property in order to accommodate a tree growing on the property line. Or suppose a landowner allows another landowner to use a private road across his property in order to gain access to the adjacent property. How do you grant such permission legally, and what are these rights called?
An easement is a privilege to use or occupy the land of another for a specific duration and for a precise and definite purpose which is not inconsistent with the owner’s rights in the property. Typically, easements are created by written instrument, such as a deed, although they can also be created by operation of law (e.g., to grant access to land where no other access is available) or by adverse possession (i.e., using land without permission of the owner for 21 years or longer). Easements run with the land upon sale and are not merely personal. Access easements and boundary easements are common examples. Another familiar example is the utility easement, for placement of pipes or wires to serve the property.
Contrast a license, which typically is the personal and revocable permission to perform acts on the land of another. While licenses are usually oral, they can be created by written instrument.
In general, the biggest differences between an easement and a license are permanence and transferability. Easements are generally of a longer duration and typically are not revocable during their term. Licenses are generally shorter and usually are revocable. Easements become part of the property to which they pertain; licenses are personal between the licensor and licensee. As an illustration, if you grant your neighbor an easement to put his fence on your property in perpetuity, the purchaser of his house will have the right to continue the use of the fence and be able to enforce that right against you and any future owner of your property. On the other hand, if you grant a license for the fence, the purchaser of your neighbor’s house loses such permission unless you renew your permission in favor of the new owner.
If you are seeking permission to use some aspect of your neighbor’s property, an easement will give you more than a license, and if cost is not a factor, you should probably seek an easement. On the other hand, if you are being asked to grant the right to use part of your property, a license gives up less than an easement and is easily revocable. To the extent consideration is paid for the right to use your neighbor’s land, a license will usually cost less than an easement.
One final point: Don’t forget the old fashioned lease as an alternative for obtaining the right to use property for a fixed duration in exchange for rent payments.
An easement is a privilege to use or occupy the land of another for a specific duration and for a precise and definite purpose which is not inconsistent with the owner’s rights in the property. Typically, easements are created by written instrument, such as a deed, although they can also be created by operation of law (e.g., to grant access to land where no other access is available) or by adverse possession (i.e., using land without permission of the owner for 21 years or longer). Easements run with the land upon sale and are not merely personal. Access easements and boundary easements are common examples. Another familiar example is the utility easement, for placement of pipes or wires to serve the property.
Contrast a license, which typically is the personal and revocable permission to perform acts on the land of another. While licenses are usually oral, they can be created by written instrument.
In general, the biggest differences between an easement and a license are permanence and transferability. Easements are generally of a longer duration and typically are not revocable during their term. Licenses are generally shorter and usually are revocable. Easements become part of the property to which they pertain; licenses are personal between the licensor and licensee. As an illustration, if you grant your neighbor an easement to put his fence on your property in perpetuity, the purchaser of his house will have the right to continue the use of the fence and be able to enforce that right against you and any future owner of your property. On the other hand, if you grant a license for the fence, the purchaser of your neighbor’s house loses such permission unless you renew your permission in favor of the new owner.
If you are seeking permission to use some aspect of your neighbor’s property, an easement will give you more than a license, and if cost is not a factor, you should probably seek an easement. On the other hand, if you are being asked to grant the right to use part of your property, a license gives up less than an easement and is easily revocable. To the extent consideration is paid for the right to use your neighbor’s land, a license will usually cost less than an easement.
One final point: Don’t forget the old fashioned lease as an alternative for obtaining the right to use property for a fixed duration in exchange for rent payments.
– Stu Cohen