What is an Exclusive Easement?

The owner of an exclusive easement, known as the holder, has a limited interest in land that someone else owns or possesses. The easement is often limited to the use or enjoyment of the property that only the holder of the exclusive easement is entitled to. It does not give the holder a right to possess the land. The opposite is a non-exclusive or common easement, where multiple easement holders can use the land owned by another. Those are often public easements, which are usually granted to utility companies.

The main point to note with regard to exclusive easements is that the owner does not have the right to possess the land. The holder has a non-possessory interest, which means they cannot occupy the land or stop the owner from using it. The exception to that rule is often when the owner interferes with the easement holder's use or allows others to do the same. In those cases, the holder can often bring legal action to stop the owner or others from interference.

The three ways most commonly used to create an exclusive easement include a will, a contract, or a deed. It is usually necessary for an easement to be in writing, because it does involve an interest in land. An exclusive easement can be created by implication under limited circumstances, however, even if there is no written document. For example, an easement by necessity is usually implied if the holder lives on property that is landlocked, and must cross over adjoining property owned by someone else to access the road. Once created, the easement is often attached to and transfers with the land.

Easements can be either affirmative or negative. Affirmative easements usually obligate the landowner to allow access or do something, and grants rights to the holder to do something. Negative easements are ones where the landowners promise not to do something for the benefit of the holder. A common example is the right of a neighbor who holds an easement to stop a neighboring landowner from building a structure or fence that would obstruct a view.

The improper use of an exclusive easement, either by the landowner or holder, can lead to legal disputes. A written document that clearly creates the easement, and describes it in detail, can often prevent the need to go to court. It is often harder to prove an implied easement exists or does not exist based on the circumstances.