The Difference Between Taking as an “Easement” and “Fee Simple”

State or local governments, utilities, schools, universities and railroads often engage in projects for which they must acquire private property. These projects can be as simple as making a road wider to accommodate an increase in traffic to as large as the extension of an interstate highway. The taking of private property for a public purpose involves an area of the law known as “eminent domain,” also known as “condemnation.”

In some projects, the condemning authority does not need full ownership of a landowner’s property. It only needs to use it, perhaps for an underground gas line or an overhead powerline. The type of project and what is needed for the project is where the difference between taking an “easement” or “fee simple” comes into play.

An easement is a non-possessory interest in a portion of real property. The person who holds the easement rights does not own the land that is subject to the easement. Ownership remains with the landowner. However, the easement allows another person to use the land. Utility companies typically acquire only an easement on, across and/or over a person’s property.

A taking in “fee simple” is different from an easement because it results in a complete transfer of ownership rights, from the landowner to the condemning authority. This type of full-possessory taking is often necessary for public projects, like new roads or expansions of existing roads. However, certain condemning authorities are limited to taking easements only and cannot take full ownership of property from a person. If they do have a choice, the decision about whether the taking will be an easement or in fee simple is generally left up to the condemning authority.