As a real estate attorney in Summerville, South Carolina, I am often asked by clients to explain easements and the laws surrounding them. In this article, I will define easement, explain the difference between servient and dominant estates, how to create an easement and the difference between expressed and implied easements.

What is an Easement in South Carolina?

An easement is a non-possessory property interest that allows the holder of the easement to use property that he or she does not own or possess. An easement does not allow the easement holder to occupy the land, or to exclude others from the land unless they interfere with the easement holder’s use. In contrast, the possessor of the land may continue to use the easement and may exclude everyone except the easement holder from the land.

According to the State of South Carolina, 

The traditional rule concerning easements is that “the location of an easement once selected or fixed cannot be changed by either the landowner or the easement owner without the other’s consent, which can be express or implied.” …Thus, “[a]fter a way has been located, it cannot be changed by either party without the consent of the other, even if the way so located becomes detrimental to the use and convenience of the servient estate…

Once established, the location of the easement cannot be changed by either the easement owner or the servient owner without the consent of both parties, even though the use of the easement where located becomes detrimental to the use of the servient estate. As a general rule, in the absence of statutes to the contrary, the location of an easement cannot be changed by either party without the other’s consent, after it has been once established either by the express terms of the grant or by the acts of the parties, except under the authority of an express or implied grant or reservation to this effect.

What is the Difference Between a Servient and Dominant Estates in South Carolina?

A servient estate refers to real property which is subject to a use that benefits another property, such as an easement, right of way or use for access to an adjoining property or utility lines.

The dominant estate is a property that has a right to use a portion of a neighboring property (easement), such as property that benefits from a beach access trail across another property is the dominant estate.

How Do I Create an Easement in South Carolina?

An easement may be express, implicated or prescribed.

  • Express Easements. An express easement is created by a deed or by a will. Thus, it must be in writing. An express easement can also be created when the owner of a certain piece of property conveys the land to another but saves or reserves an easement in it. This arrangement is known as an “easement by reservation.” Regardless, an express easement is one that is affirmatively entered into through documented legal means.
  • Implied Easements. Implied easements are more complex and are determined by the courts based on the use of a property and the intention of the original parties. The parties can be private or public/government entities. Implied easements are not recorded or explicitly stated until a court decides a dispute, but reflect the practices and customs of use for a property. Courts typically refer to the intent of the parties, as well as prior use, to determine the existence of an implied easement.
  • Easement by Prescription.  Is an easement that is gained under principles of a legal concept known as “adverse possession”, under which someone other than the original property owner gains use or ownership rights to a certain property. Prescriptive easements often arise on rural land when landowners fail to realize part of their land is being used, perhaps by an adjoining neighbor. Fences built in incorrect locations often result in the creation of prescriptive easements.

What is an Implied by Necessity Easement in South Carolina? 

An easement by necessity is an easement implied by law under certain circumstances. Such easements are most commonly implied in favor of grantees that have no access to their land except over other lands owned by the grantor or a stranger; the law will imply an easement over the grantor’s land in such a situation. An easement by necessity may be implied by law where an owner of land splits his property so that one of the resulting parcels is landlocked except for access across the other parcel.

Easements by necessity are supported by public policy favoring the productive and beneficial enjoyment of the property.

As a general rule, an easement holder has a right to do “whatever is reasonably convenient or necessary in order to enjoy fully the purposes for which the easement was granted,” as long as he or she does not place an unreasonable burden on the servient land. Conversely, the owner of the servient land may make any use of that land that does not unduly interfere with the easement holder’s use of the easement. What constitutes an undue burden depends upon the facts of each individual situation. The concept of reasonableness includes a consideration of changes in the surrounding area, as well as technological developments.

If a court determines that a servient estate is unduly burdened by an unreasonable use of the easement, the servient estate holder has several potential legal remedies. These include court orders restricting the dominant owner to an appropriate enjoyment of the easement, monetary damages when the easement holder exceeds the scope of his or her rights and injures the servient estate, and in some cases extinguishment of the easement. Likewise, remedies exist for interference by the servient owner. Interference with an easement is a form of trespass, and courts frequently order the removal of an obstruction to an easement. If interference with an easement causes a diminution in the value of the dominant estate, courts may also award compensatory damages to the easement holder.

Let my experience serve you. If you want to establish an easement or have any questions, contact the Watts Law Firm.