Easement vs. License

Generally, an easement is a right to use the property of another for a specific purpose and lasts forever.  A license on the other hand is a right to use the property of another for a specific purpose, but a license can generally be terminated by the grantor as specified in the license or otherwise at any time.  The difference was addressed recently by the Supreme Court of Rhode Island in the case of Kinder v. Westcott.

In 1952 Ralph Kinder owned three lots, two with frontage on Poppasquash Road in Bristol, R.I., and the third lot was a rear lot that was located behind the other lots owned by Ralph.  Ralph conveyed the rear lot to his brother Joe, and subsequently Ralph and his wife granted an easement to Joe across the two from lots over an existing driveway so that the rear lot would also have access to Poppasquash Road.  After the deaths of both Ralph and Joe there respective families acquired the ownership of the respective lots and Joe's family continued to use the driveway for access to Poppasquash Road.

The rear lot was originally not a buildable lot when it was conveyed to Joe, but Joe's family acquired an adjacent parcel and the two parcels were merged together so that the new, larger parcel became a lot of sufficient size to accommodate a home.  Joe's family conveyed the now larger parcel to an outsider who did construct a home on the parcel.  This irritated Ralph's surviving spouse who brought suit to quiet title to the driveway area and to prevent further use of the driveway by the outsider, Jil Westcott.

The plaintiff contended that a permanent easement was not what was intended by she and Ralph and that they only intended a license for the benefit of Joe.  She claimed that the right to use the driveway was not transferable to subsequent owners of the rear lot, i.e., Jil Westcott.

The language of the easement was clear that it was for the benefit of Joe and his heirs and assigns.  With that language in the document it was decided by the R.I. Supreme Court that the easement was transferable to subsequent owners of the rear lot.  Had that language been absent, the document would have created a mere license that could have been terminated by Ralph's survivng spouse.

It is imperative that any owner's title insurance policy insure not only the ownership of the land in question, but also insure that the easements are conveyed with the title to the land.  A "standard" owner's title insurance policy does insure access to the insured land, but unless the easement is actually specified, any access to the land would be sufficient under the title policy.  You may not always get the access you want unless it is actually expressed in the title policy.