## Easements in Delaware An **easement** is a non-possessory right to use someone else's property for a specific purpose. The owner of the burdened land ("servient estate") retains ownership; the holder of the easement ("dominant estate") gets a defined right. ## Common easement types **1. Express easement.** Created by deed / written grant: - Most common type - Recorded in land records - Specific terms in writing - Survives sale of property **2. Easement by necessity.** Created when property is landlocked: - Originally part of larger parcel - Was severed from access to public road - Implied right of way over original tract **3. Easement by implication.** Implied from prior use: - Existed before separation of properties - Continuous + apparent use - Reasonably necessary **4. Easement by prescription.** Created by long-term use (similar to adverse possession but for non-possessory rights): - Open / notorious use - Continuous for statutory period (typically 5-20 years) - Hostile (without permission) - Use as if of right **5. Easement by estoppel.** Created when: - Owner allows use - Other party reasonably relies + invests - Owner can't revoke without injustice **6. Easement by condemnation.** Government takes through eminent domain. ## Common easement purposes - **Utility easements** — power lines, gas, water, sewer, telecommunications - **Right-of-way easements** — driveways, paths, roads - **Drainage easements** — water flow - **Conservation easements** — preserve natural features (often land trusts) - **Solar easements** — preserve sunlight access - **View easements** — preserve scenic views - **Beach access easements** — public access to coastal property - **Pipeline easements** — oil / gas - **Trail / recreation easements** - **Lateral support easements** — protect against subsidence ## Express easement requirements **Created by:** - Written grant signed by servient owner - Specific description of easement area - Purpose stated - Duration (often perpetual) - Recording in land records **Failure to record** doesn't void easement between parties — but means subsequent buyers without notice may not be bound. ## Appurtenant vs in gross **Appurtenant easements** — attached to specific parcels: - Benefits a specific property ("dominant estate") - Burdens specific property ("servient estate") - Transfers automatically with sale of either - Most easements are appurtenant **Easements in gross** — benefit a person or entity, not a property: - Common with utilities - Don't transfer automatically - Often non-assignable historically; modern law more flexible ## Conservation easements **Conservation easements** are popular charitable / tax-planning vehicles: - Voluntary restriction on property use - Donated to land trust / government - Property kept in private ownership - Use restricted (often agricultural, no-development, recreation) - Tax benefits — federal income tax deduction + estate-tax reduction + state property-tax reduction - Permanent + binding on future owners Recent IRS scrutiny of "syndicated" conservation easements due to abuse. ## Common easement disputes **Scope disputes:** - What activities are permitted within easement? - Can dominant owner expand use? - What constitutes overuse? **Maintenance disputes:** - Who pays to maintain easement area? - Default rule: dominant estate maintains; servient maintains its property - Easement document can specify **Encroachment disputes:** - Servient owner builds in easement area - Dominant owner uses outside defined area - Boundary creep **Termination disputes:** - Has easement been abandoned? - Has it been merged? - Has it expired? ## How easements terminate - **Express release** by easement holder - **Merger** — same person owns both servient + dominant estates - **Abandonment** — non-use + intent to abandon (mere non-use insufficient) - **Estoppel** — holder's conduct prevents enforcement - **Necessity ends** — for easements by necessity - **Condemnation** — by government - **Foreclosure of senior lien** in some cases - **Stated expiration** in original grant ## Tax considerations **For dominant estate:** easement adds value (you own a right). **For servient estate:** easement reduces value of property; sometimes deductible if granted to charity. **Conservation easements:** federal income tax deduction up to 50% of AGI, 15-year carryforward; state-specific benefits. ## Boundary line agreements vs easements - **Easement** — right to use, doesn't change boundary - **Boundary line agreement** — actually moves the property line - **Quitclaim** — transfers any interest one party has Confused frequently in practice. Use the right tool. ## What you should do Before buying property in Delaware: get a thorough title search examining recorded easements + a survey identifying physical evidence of easements (paths, utility lines). For easement disputes: hire a real-estate attorney; many cases resolve through negotiation. For conservation easements: work with experienced land-trust attorneys + tax advisor. Most Delaware real-estate attorneys offer paid initial consultations. --- *This guide is general information about Delaware law as of early 2026 and is not legal advice. Easement law is technical. Talk to a licensed Delaware real-estate attorney about your specific situation.*