Montana easement basics

Posted by David J. SteeleJan 26, 20170 Comments

In some situations, a property owner may find themselves without the ability to reasonably access public lands or portions of their own land without crossing onto another person's land. If this is the case, they may require what is known as an easement.

When an individual attains an easement, they are essentially just showing that they have an interest in using public or private land that they do not own. There are many different situations where easements may come into play for private parties and there are different types of easements for different circumstances.

Common types of easements

Easements by necessity – One of the most common forms of easements by necessity is known as a “strict necessity” easement. These are used when a property owner is practically unable to access their own property except by traveling over property owned by another party, whether it be a neighbor or a government agency.

Express easements – These easements are put forth in some sort of written format. They generally explicitly define the physical measurements and limitations of the easement proper. By defining the easement, it prevents any other parties from using the area irresponsibly or in a manner that is not beneficial to the property owner. Common forms of express easements include,

  • Contracts
  • Property deeds
  • Land grants

Prescriptive easements – According to the Montana state code, prescriptive easements provide individuals with “a right to use the property of another that is acquired by open, exclusive, notorious, hostile, adverse, continuous, and uninterrupted use for a period of 5 years.”

In practice, this type of easement can lead to what is known as adverse possession. The real defining factor between a prescriptive easement and adverse possession is communication between the parties. If the property owner was aware that another party was using their land, but did nothing to stop them or to express that their behavior was permitted, the party in question may be able to adversely possess the property owner's land.

Legal representation

These are just a few of the most common forms of easements, but there are many more. Additionally, these types of cases can quickly become complicated due to property ownership laws and regulations.

If you find yourself in a situation where you may have to resolve an issue regarding easements, it is highly suggested that you contact an experienced legal professional sooner rather than later. They will be able to get the situation moving in the direction that is most advantageous for you and your property and will work to prevent either from being taken advantage of.