It can be confusing if you find out your new home has an easement during the closing process. Easements on the property allow third-party access to your land; understandably, you might not like this situation.
While most property sales are not adversely affected by easements, problems can happen. Knowing an easement and how it works could be crucial to understanding your property rights better.
Real Estate agents are asked all the time how easements work. I have answered this question many times. Whether buying a house or purchasing land, it is critical to understand how usage can impact the property.
Let’s examine more closely everything you need to know about easements in real estate. You’ll know precisely what an easement does when you’re done reading.
What is an Easement?
An easement definition is relatively straightforward.
An easement in the property title gives the named person or organization limited access to the property for a defined reason. Access to private property needs to be for a specific purpose.
For example, this could be utility company employees and access to their infrastructure. The power lines could need repair; the only way to access them is from your property.
A few other examples of an easement would be for the city to access the sewer lines or water pipes. The sewer systems may have a blockage or a water pipe burst.
In these circumstances, utility providers or the city will need access to public utilities. Public utility easements are the most common type of easement.
An easement gives the holder the right to use the other party’s land. It is a grant of a nonpossessory property interest and legal term for a property right.
If there is legal access, it could affect the owner in a few different ways. It might restrict the things you can do with the property, like avoiding doing anything that could block access to the easement holder.
An easement could also mean you cannot restrict a neighbor’s view or block their sunlight. Easements on a property could impact the market value depending on the type of easement and where it’s located.
It could be meaningless if you have more than an acre of land and it doesn’t disturb the use of the property.
What is an Easement Agreement?
An easement agreement is a legal document that allows the use of the property by a specific party. A property easement will be recorded as part of the property deed. It will become part of the public records.
New owners must follow any recorded easements when they take possession of a property.
If two parties agree to an easement agreement, they are granted permission to use a specific piece of land. When giving an easement, seeking legal advice from a qualified real estate attorney is a good idea.
An express easement is a legally binding right that gives you an interest in the property of another party. An implied easement is a less formal easement that allows for the use of someone else’s property based on current circumstances. An implied easement is not in writing.
It is much better to have easement agreements in writing and recorded. For example, it is common for those with a shared driveway not to have an agreement. An individual or entity has an implied agreement in these cases.
It is best if attorneys put the arrangement in writing on these properties. It gives future buyers peace of mind moving forward. A buyer and seller can agree to do this at the time of sale. A qualified lawyer in your location can handle this easily.
Affirmative and Negative Easements Explained
Most easements are usually affirmative or negative. An affirmative easement gives the holder the right to do something on the property. Usually, it requires that the property owner do something in return, such as granting another person access to or across a specific piece of land.
A negative easement restricts how someone can use or access real property. It is typically created to protect the interests of another party, such as preventing someone from building a structure too high or blocking views of a lake or ocean.
Negative residential easements are no longer typical, as new developments often have rules and regulations in homeowner’s association documents.
Negative easements are put in place to protect property value. After years of enjoyment, most homeowners would not want to lose their scenic view.
How Easements Work
With an easement on the property, you are bound by the details of the arrangement. This means the party holding the easement can access your land under the agreement terms.
This could mean a utility company accessing your property to maintain cables on your land or the electric company fixing their wiring.
It works the other way as well. If you have legal access, you can cross your neighbor’s property, perhaps to access your home.
Are Easements a Reason to Back Out of a Home Purchase?
While there are extra concerns with easements on the property, it shouldn’t be a reason to back out of the deal most of the time.
An easement that gives utility companies access to your property benefits you and your neighbors, ensuring access to fix problems.
Though this will not always be an issue, it is still essential to research before you buy. Before closing on the home, you must have a title search showing any easements or liens on the property. If the title has an easement, it could be one of a few different types.
Different Easement Types
While there are many different types of easements, only a few are commonly found. We’ll take a look at some of the most frequently found easements.
Private Easements
If your neighbor needs access to your property, perhaps to perform some maintenance work to their home, you can grant them a private easement. These easements can be created and even sold by the property owner.
Your neighbor could approach you with a request to access your property, and you could grant this, offer to sell it to them or refuse them. Perhaps contributing to selling a temporary easement isn’t the best idea for good neighbor relations.
While passage rights like this shouldn’t be a big problem if only temporary, there can be more issues with longer-term access. Private easements could affect future homeowners and should be listed on the title.
A private easement could limit the owner’s use of property, depending on the details of the arrangement. Real Estate attorneys refer to this as an encumbrance.
Utility Easements
As the name suggests, this easement gives access to utility companies. This will mean employees of utilities will have the right to access the property. This will only be to maintain the utility service.
These easements are typically created through state or local laws and are familiar with new homes. They offer homeowner benefits, as you want a functioning electricity supply, water, sewage, and cable.
The utility company may need to use its easement rights on your property to ensure you continue access to these services. There should be a limit on what the utility company can do on your property, but this could include installing new equipment to maintain their benefit.
The utility easement could mean you are restricted in what you can do on the property. It might prevent you from planting trees or building in an area where the utility company has legal rights.
Anything preventing the utility company from using their passage rights or restricting access might not be allowed.
Conservation Easements
A conservation easement is an agreement that restricts the use of land to protect its natural or cultural values. Many cities and towns refer to these as conservation restrictions, as the landowner is prohibited from disturbing this property area.
There could be multiple reasons why a conversation easement is put on a property, including designated wetlands or wildlife habitats.
A conservation easement is a legal document that allows the owner of property to give up some use of the land in exchange for protection from development. The easement restricts future activity on the property, usually allowing only the passive benefits of walking or hiking.
A new homeowner purchasing a property with a conservation easement will need to follow the protection order just like the previous owner.
Easements by Necessity
This type of easement is for situations where another party needs to cross your property because they have no other means of accessing their land. These easements can be more common in rural areas, where access to a road might only be possible by crossing someone else’s land.
Easements by necessity are sometimes known as access easements. They were created due to the government’s drive to ensure the land was productive.
Even if you don’t like the idea of an easement like this on your property, you can’t prevent it. It would be considered an unnecessary burden on your neighbor, who would otherwise be unable to access a public road from their land.
Government agencies don’t like to see this happen.
Prescriptive Easements
A court can place a prescriptive easement on a property if it is considered a right based on previous use. If someone has been walking across your land repeatedly to access their property without your permission, they could be granted this type of legal right to continue to do this.
It could also apply if a neighbor is parking their car on part of your land, and you don’t stop them. If enough time has passed, based on state laws, they could make this situation permanent through the court.
While this doesn’t seem like a fair situation, it would be considered that not stopping this from happening is a concession on your part. To prevent this situation from happening, trespassing shouldn’t be ignored and dealt with as soon as possible.
If you suspect someone is attempting to get a prescriptive easement over your land, you must assert your property rights. Building a fence could prevent them from continuing to trespass, or even giving permission to the trespasser should prevent a prescriptive easement.
With the example of a neighbor parking on your land, permitting the current resident will stop future neighbors from claiming a prescriptive easement to do the same.
Historical Preservation Easements
A historic preservation easement is a legal agreement, typically in the form of a deed, which preserves significant property rights. Under a historic land agreement, the current owner is assured that the historic characteristics of the property will remain intact. In other words, this type of easement will not expire.
Typically, with a historic preservation agreement, there are restrictions placed in the public records on what changes can be made to the property.
Usually, when such an agreement is in place, an organization must manage and enforce any restrictions. The easement restrictions become part of the chain of title to the property.
How Can You Tell if There is an Easement on the Property You are Looking to Buy?
Usually, a title search will reveal if there are any easements on the property you are interested in buying. Unfortunately, though, not all easements are documented in the title.
Some easements are never recorded, and when newly created, they might not have been documented when checked during the title search. There can also be easements that are not confirmed legally and are only implied with an understanding of those involved.
Most homes will have some easement arrangement, which aren’t problems for the owners. But when buying a home, you need to know about it as it will continue to apply to the property.
Easements will generally apply to the land separate from the ownership, which means that a change of owner won’t end the passage rights. If you don’t like something about the passage rights on a property you are interested in, consulting a real estate attorney should help clear up your concerns.
Also, ask the real estate agent marketing the property if they know of any easements.
What is an Easement Appurtenant?
Appurtenant is an easement applied to one lot of land but benefits another. The lot that benefits from the arrangement is called the dominant tenement or dominant estate. The lot with the means of access applied to it is known as the servient tenement or the servient estate.
If you own some property that is the only route of access to a path, park, or other feature, this type of legal right can be applied to your property.
It can give other residents in the development the legal right to cross your property. This would make your property the servient tenement, and the parcel of land that benefits from the arrangement will be the dominant tenement.
How Do Prescriptive Easements Differ from Adverse Possession?
Adverse use and prescriptive use of a property differ from one another.
Adverse possession is how someone trespassing can claim ownership rights to the property. Sometimes referred to as squatters’ rights, it is similar to a prescriptive easement.
The big difference between the two is that with a prescriptive easement, the person applying for the legal rights only wants to use the land. But with adverse possession, the person is attempting to own the property.
You can see an excellent definition of notorious use in adverse possession claims.
An easement by prescription can take place when someone uses another person’s land without them knowing. For example, installing a fence over the property line and using the land.
When this encroachment happens over many years, the offender may establish legal rights to continue using the land. They become the dominant estate.
The original land owner is referred to as the servient estate. They would need to sue in court to get their rights back for the land.
What Are Easements in Gross?
An easement in gross agreement between two or more landowners allows one person access to the landowner’s parcel of property. This easement can be a beneficial tool for people who need access to large tracts of land, such as farmers or developers.
An easement in gross differs from the more traditional easement appurtenant because it does confer an irrevocable property right to a non-owner, it isn’t part of the title or transfer from owner to owner.
Essentially, an easement in gross attaches to a person, while a standard easement attaches to land. It should be noted that with an easement in gross, you don’t have to be neighbors to receive one.
For example, an owner may have a nice dock. The owner may give his friend an easement in gross that grants him the use of the pier. If the owner sells or passes away, the legal rights to use the dock would no longer exist.
How is a Right of Way Different From an Easement?
A right of way is a legal term that refers to the land used by parties to pass through or over another party’s land.
On the other hand, an easement is an agreement between two or more parties in which one party grants permission to use specific parts of their property for an intended purpose.
A right of way allows anyone to pass through a portion of the property as though it were public land.
What Happens When a Property Owner Does Not Comply With an Easement?
Any development that interferes with the right of the dominant owners to use and enjoy their easement may well constitute a breach of the access rights, entitling them to seek an injunction preventing development or damages for the loss of value caused by interference.
Dominant property owners should always be granted neighbor access over a property line when an easement exists. A court order often handles easement issues when a person’s property rights are violated.
It is pretty possible in circumstances like these, it could be an intentional encroachment.
Interesting Statistics About Property Easements
Final Thoughts on Easements
If you find that the home you are interested in buying has an easement, you shouldn’t be overly concerned. Often, easements benefit the property owner and whoever holds the means of access.
Though you also need to understand what the means of access will mean for your ownership and what restrictions you will need to follow, above all, you should ensure that you are protected by thoroughly checking the types of passage applied to the property.
Real Estate law will cover most easement problems. If you run into an issue, seek the counsel of a qualified real estate attorney. Most are versed when it comes to such property disputes.
YoIt would help if you now had a much better understanding of the definition of an easement.
About the Author: The above Real Estate information on what an easement is was provided by Bill Gassett, a Nationally recognized leader in his field. Bill has expertise in mortgages, financing, moving, home improvement, and general real estate.
Learn more about Bill Gassett and the publications he has been featured in. Bill can be reached via email at billgassett@remaxexec.com or by phone at 508-625-0191. Bill has helped people move in and out of Metrowest towns for the last 37+ years.
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