Easements in New Jersey serve many purposes.
- “Right of way” easements allow owners to pass through another’s property where it is necessary for street access or convenient for traveling to a specific location.
- “Public Utility” easements permit utility companies to set up electrical and plumbing.
- Commercial uses such as parking, access to transportation, or storage.
- Temporary easements may be necessary for construction projects.
This entry addresses types of easements, how easements are created and terminated, and penalties for violating easements in New Jersey.
What is an Easement?
An easement is an interest in land owned by another granting the right to use that land for a specific purpose. Caribbean House, Inc. v. N. Hudson Yacht Club, 83 A.3d 849, 853 (Super. Ct. App. Div. 2013) (“An easement is an interest in the land of another affording a right to use the other’s land.”)
The land that benefits from the easement is called the dominant estate. The servient estate is the land burdened by the easement, or in other words, must allow the dominant estate to use the land.
An affirmative easement allows the easement beneficiary to take some action on the servient estate, while a negative easement prohibits the owner of the servient estate from using their land in some way.
Six factors identify an easement property interest in New Jersey (Leach v. Anderl, 526 A.2d 1096, 1099 (Super. Ct. App. Div. 1987):
- Interest in land owned by another;
- The interest is a “limited” use of the land;
- Legal protection is available against interference by third parties;
- The interest is not terminable at the will of the servient estate;
- The interest does not normally exist without an easement;
- The interest is capable of creation by conveyance.
Easement “Appurtenant” and “In Gross”
New Jersey recognizes easements as “appurtenant” or “in gross”.
An easement appurtenant attaches to the land that benefits from the easement (the dominant estate). Since the easement belongs to the land and not the landowner, it transfers automatically to successors in ownership without any required documents or actions.
An easement in gross belongs to a person or entity, regardless of their ownership of any specific land. An easement in gross typically terminates upon transfer of ownership of the land benefiting from the easement.
See Birch Invs., LLC v. Keymer, No. A-1840-16T4 (Super. Ct. App. Div. Apr. 26, 2018) (“The law recognizes two types of easements, easements appurtenant and easements in gross. An easement appurtenant requires a dominant tenement to which it is appurtenant, whereas an easement in gross belongs to its owner independently of his ownership or possession of any specific land. An easement in gross benefits no specific parcel owned by another; it is independent of and unconnected to the ownership or possession of any particular tract.”)
The following language, along with utilizing the phrase easement appurtenant, will identify an easement appurtenant: “for the benefit of, and shall be binding on, the heirs, personal representatives, successors in interest, and assigns of the respective parties.” See Hoboken Assocs., LP v. Kenny, No. A-3561-16T2 (Super. Ct. App. Div. Nov. 21, 2018).
How to Create an Easement
Easements are created in New Jersey by implication, by an express conveyance, or by prescription.
Easements, besides those created by prescription or implication, must be in writing absent special circumstances to comply with the New Jersey Statute of Frauds. N.J.S.A. 25:1-11; 25:1-13. Written easements are referred to as express.
Easements are normally written into a deed or a separate “Easement Agreement”. For coverage of New Jersey deeds, see the article Types of Deeds and Covenants in New Jersey.
An easement by grant occurs when an owner grants another an easement to use the owner’s land.
An easement of reservation occurs when a grantor reserves to use the land and after they transfer ownership. For example, a fisherman may “reserve” access to a dock after he sells his shipyard.
For the document to be effective and recordable with the county it should: be in English or be accompanied by a translation, identify grantee and grantor, be signed by the grantor with his name printed underneath, include the name and address of grantee, state consideration, a clear property description, and the nature of the interest being transferred. Learn more about effective and recordable deeds.
Courts enforce easements as written when the language is clear and unambiguous. However, if the easement is unclear, courts consider physical conditions of the land, the purpose of the easement, and the surrounding circumstances.
An implied easement is not written but “implied” from the circumstances surrounding the land and transfer of ownership. Easements are implied based upon prior use, from reference to a map or boundary, or necessity.
Implied easements operate on the principle that parties involved in transferring real property are aware of the actual conditions and intend that the benefits and burdens of the property continue.
Easement by Necessity
An easement by necessity arises when a division of land creates a newly divided parcel that has no street access. This easement is based on the principle that no land should be made inaccessible and useless.
An easement by necessity arises where there has been: (1) prior unity of ownership of two lands, and (2) a subsequent severance resulting in the grantor or grantee owning a parcel which is landlocked. See Ghen v. Piasecki, 172 N.J. Super. 35, 44, 410 A.2d 708, 712 (Super. Ct. App. Div. 1980).
In other words, easements by necessity can arise where a landlowner previously owned one tract of land, that landowner divided that tract into two lands, one of which became landlocked. The landlocked land has the easement by necessity to cross the other for street access.
Necessity is determined at the time the parcels are originally separately even if the application for establishment of the easement is made by subsequent owners of the landlocked parcel. Wiggins v. Dorsey, No. A-6446-08T1 (Super. Ct. App. Div. July 19, 2010).
Quasi-Easement (Easement By Prior Use)
Quasi-easements (also called easements by prior use) arise where an owner of a tract of land uses one part of the land to benefit another, and then the tract is divided separating the part of the land that benefited (“quasi-dominant estate”) from the part of the land that was burdened (“quasi-servient estate”). If the owner then sells the quasi-servient estate, he has quasi-easement to continue the use if it is reasonably necessary.
A quasi-easement is founded on the following elements (Leach v. Anderl, 526 A.2d 1096 (Super. Ct. App. Div. 1987)):
- the two lands had a common owner (unity of title) at the time of being separated;
- the apparent and continuous use of the quasi-servient portion of the estate for the quasi-dominant portion;
- the permanent character of the quasi-easement; and
- its reasonable necessity to the beneficial enjoyment of the dominant estate.
The case of is 1101 CRNB, LLC v. Feed the Children, Inc., Civil Action No. 10-2811 (FLW) (D.N.J. Jan. 13, 2011) instructive.
Plaintiff owned two lands that had warehouses facing one another with a common parking area. The parking area was mostly contained on one of the lands. After Plaintiff sold off the parcel containing the parking area, the new owner put up a fence blocking access to the parking.
The court in that matter fund an quasi-easement could exist to continue to use the shared parking area because:
- Two tracts of land were originally part of a of a larger tract of land held by the same owner [unity of title];
- The common parking area been openly used for over thirty-years [apparent use and continue use]
- Th driveway was designed to be shared among the properties [permanent]
- Lack of access to the e common area prevented the trucks from accessing docks, which was harming the business [reasonable necessity].
From Reference to Map or Plat
Lands may be subdivided and filed on a map showing blocks, lots, and areas reserved for common use such as streets and parks. An owner that is conveyed a lot by reference to this map is said to have an easement in the common areas.
See Picconi v. Carlin, 123 A.2d 87, 89 (Super. Ct. 1956) (“Parties purchasing lots with reference to a filed map upon which is designated a park area acquire private rights therein in the nature of easements.”)
Easement By Estoppel
An easement by estoppel arises when an owner purposefully acts in such a way that another person reasonably believes they have an interest in the land to their detriment.
For example, an easement of estoppel to use six parking spaces was created after an owner allowed a neighbor to pave, clear, and maintain parking spaces for several years. See 1952 Union Valley Rd., Ltd. Liab. Co. v. Adelo Corp., No. A-3203-08T3 (Super. Ct. App. Div. Mar. 30, 2010).
To prove an easement by estoppel, a party must establish:
- The owner knowingly engaged in conduct that amounted to a false representation, concealment of material facts, or conduct that conveys an impression inconsistent with those that the owner subsequently asserts;
- The owner had the intention or should have foreseen that the other party will act on the owner’s conduct;
- The party seeking the easement of estoppel truly believed they had an interest in the land, relied on the conduct of the owner, and was harmed as a result of that reliance. SDLL Assocs., LLC v. Million, No. A-0713-04T3 (Super. Ct. App. Div. Mar. 24, 2006).
Easement By Prescription
An easement by prescription is an implied easement created by open, notorious, and uninterrupted, and hostile of real property. These easements are akin to adverse possession.
In New Jersey, a party asserting a prescriptive easement must prove “an adverse use of land that is visible, open and notorious for at least third years. The proponent of the easement must establish the elements by the preponderance of the evidence.” Bloom v. Morales, No. A-2188-13T2 (Super. Ct. App. Div. Mar. 6, 2015).
Use of the property is open and visible where an reasonable person would be aware of it.
A use is hostile where it was “pursued with an intent to claim against the true owner in such circumstances of notoriety that the owner will be aware of the fact and thus alerted to resist the acquisition of the right by claimant before the period of adverse possession has elapsed.” Yellen v. Kassin, 3 A.3d 584, 588 (Super. Ct. App. Div. 2010).
An easement by prescription was created to travel across a 35.5 acre land where various motor vehicles had done so for over thirty-years. Lamanna v. Swan, No. A-1280-10T3 (Super. Ct. App. Div. July 20, 2012).
Terminating an Easement in New Jersey
Release Agreement. Easements terminate if the owner of the dominant estate executes a release of the easement to the servient estate owner.
Expiration of a Stated Term. Easements created for a specific time period terminate upon expiration.
No Longer Necessary. Easements by necessity automatically terminate if circumstances change making the easement unnecessary.
Abandonment by the Dominant Estate. An easement is terminated by “conduct on the part of the owner of the dominant tenement, which unequivocally exhibits an intention to abandon it. In order to establish abandonment, the asserting party must present clear and convincing evidence that . . . there is action by the dominant tenant respecting the use authorized which indicates an intention never to make the use again.” Williamson v. Ernst, No. A-3162-14T1 (Super. Ct. App. Div. Nov. 3, 2016).
Merger of the Dominant and Servient Estate. An easement terminates where the owner of the dominant estate acquires title to the servient estate.
Estoppel. An easement can be terminated where the beneficiary of the easements communicates, by conduct or in words, an intention to modify or terminate the easement, under circumstances where it “is reasonable to foresee that the burdened party will substantially change position on the basis of that communication, and the burdened party does substantially and detrimentally change position in reasonable reliance on that communication.” 1701 E. Main, LLC v. Wawa, Inc., No. A-5469-15T2 (Super. Ct. App. Div. Oct. 11, 2017).
Violation of Easements
Landlords may not interfere with or make use of the easement more difficult without consent of the easement holder.
See Kline v. Bernardsville Ass’n, Inc., 631 A.2d 1263, 1265 (Super. Ct. App. Div. 1993) (“Landowners may not, without the consent of an easement holder, unreasonably interfere with the latter’s rights or change the character of the easement so as to make the use thereof significant more difficult or burdensome.”)
Where a landowner obstructs or interferes with easement rights, the easement holder may maintain an action for damages for nuisance or infringement. In addition, an easement holder may seek injunctive relief to stop the infringement. Berezofsky v. Haesler, No. A-5093-07T1,(Super. Ct. App. Div. Aug. 24, 2009).
Relocation of Easements. An easement may be relocated from one location to another if it does not significant burden the easement holder. See Pathmark Stores, Inc. v. Bernard Oster, Inc., No. A-4385-07T3 (Super. Ct. App. Div. July 29, 2009) (“A court may compel relocation of an easement to advance the interests of justice where the modification is minor and the parties’ essential rights are fully preserved.”)