Month: December 2014

A Brief Primer on Georgia Easement Creation and Dissolution

Broadly, easements are right to use another’s land or to an adjoining land owner from full use of their land.  Easements may be for a road to access a neighboring property, the placement of power lines or other utilities, the right to hunt or fish, or the prohibition on building a structure over a certain height.

Types of Easements

Easements may be created by deed, prescription, law, or implication.  An easement is created by deed much in the way the transfer of land takes place.  The deed describes the location, size, and type of easement and, if desired, places limitations on its use.  Examples of limitations include the duration of the easement or frequency or extent of use allowed like volume of traffic.  If left unspecified, the easement will never expire and the person obtaining the easement could use it as much as they desire.

An easement may arise by prescription through continuous use of another person’s property for twenty (20) years or as little as seven (7) years under “color of title” (possession of a document purporting to grant the easement).  For instance, using a path through another person’s land to access your land for twenty years could grant the path-taker an easement for use of that path.

Georgia law provides for the creation of an easement in order to reach landlocked property.  A petition is filed and assessors will determine the value of the easement to be paid to the owner(s) of the land where the road would be located.  The judge will review the petition to determine whether the easement is necessary to access the property.  If the court is satisfied, the easement will be granted and the petitioner ordered to pay the owners.

An easement may also arise by implication.  This could arise where an owner of a larger tract of land sells off a portion.  If the portion sold requires use of a driveway that crosses the larger tract, an easement will be implied to have been created at the time of the transaction.

Alternatives to Easements

If an easement is not required or desired, simply getting permission to access the land is an option.  This is called a license and has the benefit to the owner of the property of being revocable.  If the use exceeds what the owner expected the owner may revoke the license.  Or, if the owner decides to sell his property, the license may be revoked and the property sold clear of any encumbrance.  A license may be oral or written.

Removing an Easement

Besides the owner of the easement voluntarily releasing the easement, the only way to remove it is by establishing that the easement is abandoned.  Lack of use is typically not enough to show the intent to abandon.  This may be evidenced by the removal of installations like bridges or power lines or allowing a roadway to become overgrown with trees.  If the conditions are met for abandonment, an action to quiet title may be filed to have a court invalidate the easement.

If you have any questions about the formation of an easement or need an easement removed from your property, please contact Will Tate, attorney with Thompson, Meier and King, P.C., at wrt@dmtlawfirm.com or (770) 479-1844.