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?
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.
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.Restrictive covenants can also be used to protect 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 – an easement upon another’s real property acquired by continued use without permission of the owner for a period provided by state law to establish the easement. The problems with prescriptive easements are that they do not show up on deeds or title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion.
- Public Easement – the right of the general public to use certain streets, highways, paths or airspace. In most cases the easement came about through reservation of the right when land was deeded to individuals or by dedication of the land to the government. In some cases, public easements come by prescription (use for many years) such as a pathway across private property down to the ocean. Beach access has been the source of controversy between government and private owners in many seaboard states.
- Easement of Necessity – an easement imposed by a court due to equity (fairness), including, for example, the ability to get to a “land-locked” piece of property. In the context of beach access, an easement of necessity might be contemplated if there is no other way to access a particular beach, making an easement across private property one of “necessity.”
- Negative Easement – an easement that limits a landowner from using their land in ways they would otherwise be entitled to.
- Easement on Development Rights – an easement that simply restricts development, for example limiting the building of a structure for the purpose of protecting visual access. Development rights are the legally allowed potential for improvement or construction on a parcel of real property. The development right can be separated from the underlying fee, such that one person owns the property while another (such as a land trust) owns the right to development (usually for the purpose of preventing the exercise of that right).
- Floating Easements – an easement that is specifically for a purpose (i.e. “to provide access to the Jones property” or “to provide access to the saltwater.”)