EASEMENTS – PART 4: LICENSES
by BPE Lawyer Steve Beede
As discussed in the prior installments, Easements can come into being by agreement between the parties or by one party’s use of the land of another without consent. Once established, an Easement creates an enforceable interest in land that lasts either indefinitely or for some specified period of time. In contrast, a “License” does not create any interest in land, rather it merely gives a permission to use the land of another for a particular act or acts. And that permission can be revoked at any time. Further, unlike an Easement, a License cannot be transferred to another person.
Of course, legal disputes can arise from this similarity because both easements and licenses involve the use of another person’s land, they can look similar. If the parties’ agreement doesn’t clearly specify whether and easement or a license is being granted – or if there is no written agreement at all – then a lawsuit is likely to arise in any dispute and a Superior Court judge will have to decide what the parties intended to create.
Here’s an all too common scenario: Jack and Bill are neighbors. Bill’s property is small so he asks Jack if he can put a barbeque on an unused part of Jack’s land. Jack says OK. Does this create a License? That depends upon what happens next:
If later that weekend, Jack changes his mind and tells Bill to move the Barbeque off Jack’s land, Bill must move it…. only a license has been created;
If Tom not only gives Bill the permission but also writes a note to Bill stating something like: “I hereby give you a permanent right to use my property to store your barbeque” then an Easement may have been created, ie: “permanent right”;
If, in reliance on Tom’s permission, Bill hires a contractor to build a beautiful brick barbeque and Tom watches the construction, Tom might be denied a right to terminate the license under a legal “estoppel” theory, ie: Bill detrimentally relied upon Tom’s failure to object to the construction;
A year later, Tom sells his property and his successor does not challenge or otherwise object to Bill’s continued use of the land for his barbeque. After five years, Bill might have acquired a Proscriptive Easement in Tom’s land.
The bottom line… if all that a party intends to convey is a permissive use – a license, the best policy is to put the agreement in writing and stick to the agreement.
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This article is not intended to be legal advice, and should not be taken as legal advice. Every case requires review of specific facts and history, and a formal agreement for service. Please feel free to contact us if you need legal advice and are interested in seeing if we can help you.