Easements
Rights of access to the shore can be acquired separate from the land itself through the use of easements. An easement allows its holder the right to use another person’s land for the purpose specified in the deed granting the easement. The landowner retains full ownership of the land and can use it in any way that does not interfere with the rights granted in the easement.
Some easements are voluntary grants by a landowner to a user, but others are imposed by law.
What are forms of voluntary easements that can be used for access?
Conservation Easements A conservation easement is when a landowner voluntarily limits, by sale or donation to a land trust or other public interest entity, the uses of the property for the purpose of protecting natural resources. It can also spell out how and if the public has access rights to those natural resources. A conservation easement can be held by the government, or by a non-profit or charitable trust that has conservation purposes. The conservation easement “runs with the land,” meaning it is still in place even if the land changes hands, and is therefore considered a permanent protection. There are important tax implications and benefits associated with buying or donating a conservation easement (including decreased property, income, and estate taxes) and landowners should work with a lawyer or a land trust to explore the options.
Covenants
Not exactly an easement (though the terms are often confused), a covenant is a written legal promise contained in a contract or deed. A landowner promises to the limits on land use defined in the covenant. The covenant can be enforced by another party, such as the state. Covenants can be used to specifically address ways that landowners legally promise to address water access on their land.
The Working Waterfront Covenant is an example of how covenant language helps protect access for commercial fishing in perpetuity. Restrictive covenants and possibly working waterfront easements can also be used to protect waterfront use and access.
What are forms of easements imposed by law that can be used for access?
From a landowner’s perspective, some easements may be unfortunate things that happen to them to force ongoing access or use. Some may also be agreed upon by a landowner or developer as they negotiate the legal uses of their land. “Imposed” easements include:
- Prescriptive easement
- Public easement
- Easement of necessity
- Negative easement
- Easement on development rights
- (more on development rights)
- Floating easements