A gravel road between two fields of corn


Easements are a form of land ownership that gives you the right to use someone else’s land for a specific purpose. For example, if you’ve been driving across somebody else’s land for years to get to your land because your land doesn’t have access to a major road, you may have a legal right to continue using that driveway or strip of land even if the owner attempts to cut off your access.

In farming communities like Berks County, Pennsylvania, this is an important issue. Frequently, land is split up when its owner dies and left as separate parcels to each of the children. Over decades, these children sell their land and move away, and a future owner finds themselves in a position where somebody is driving across their land. This new owner may cut off the access, build a fence, send a nasty letter, or even aggressively puncture tires to stop the access.

In any of these cases, what the owners of these parcels of land are dealing with is called an easement. While easements are one of the most complicated and fact-intensive areas of the law, here are four types of easements for you to consider to figure out if you have rights to the land that you’re driving across or not. This article isn’t legal advice, but we hope it helps! You should speak to an experienced real estate attorney about your specific situation before taking action.

Easement by Prior Use

Say an owner owns one big parcel of land. He then subdivides it and sells one or both halves. Then say one of these new owners needs to use part of the other half for some reason. Let’s say it needs a driveway across the second property to access a road. Then the person who will be using the road automatically has an easement to drive across the other’s property. But there are many situations where this might occur. Say also, you are the owner of one half, and you have an underground sewer pipe that runs across the second piece of land in order to connect to the city sewer system. You will have an easement— a right to keep that pipe under the ground—across the other person’s land.

This right is acquired by “prior use,” meaning that it is acquired because it was used before the property was subdivided. This often is used to argue that the prior use should continue.

Easement by Necessity

This is similar to an easement by prior use in that it arises automatically from the division of one property into parcels. But in this case, it occurs when the division leaves one parcel completely landlocked, so that it cannot conveniently access any road. The law creates an easement to “un-landlock” that piece of land by creating a right to cross other people’s property.

When it comes to determining this type of easement, origin is heavily contested. If the second owner has no other way to access a main road, it’s a fairly clear situation. But if there are other access points that are merely inconvenient, there may be substantial litigation to determine whether the easement is really “necessary.” Even where the easement is valid, the size of the easement—the width and type of paving—may still be in dispute.

Easement by Estoppel

“Estoppel” is a legal doctrine that protects those who rely in good faith on promises. When one person makes a promise that leads another person to rely on that promise, and in reliance on the promise they lose something, then the law will often enforce that promise.

Let’s say you’re building a pool in the backyard, and the only way for the builders to get to your backyard is through someone else’s land. You go to this person and ask them if they can do so. This person says yes. But once they see how much the machinery is tearing up their yard, they change their mind. If you relied on that promise by putting a down payment on the pool, and if the builders can’t get back to that spot in any other way, the law may provide you a temporary “easement by estoppel.” You may also be liable for the damages to the neighbor’s property in that situation also.

Easement by Prescription

Property rights favor the efficient use of property. This means that the law does allow someone to “steal” rights in land by using them repeatedly. As a simple example, take a farmer who routinely uses a path across a neighbor’s land for 21 years without stopping even when told to. After 21 years, the farmer will own an easement.

This situation arises often with absentee owners. Someone who inherits land but never visits may find that they have lost rights after a period of time. This is also known as “adverse possession.”

Conclusion: Speak to an Experienced Real Estate Attorney

In all of these situations, even where an easement already exists, it’s best to put the easement rights clearly in a deed. Sometimes, agreeing on easement rights is best for all parties involved. It can be accompanied by a maintenance agreement in which the parties agree who is responsible for paying the costs of keeping the road maintained and similar costs that accrue from an easement. If you have a question about your property rights, contact the experienced real estate attorneys at Cornerstone Law Firm. We can offer you a consultation today on your real estate needs.