Buying a home is a big deal. So, it makes sense to have a big list of questions about each property you see – from what the neighborhood is like to the property tax bill you can expect.
Adding easements to your big list of questions is a must. Easements (aka a real estate easement or easement in real estate) can have a significant impact on your property, your property rights and your property’s value.
We’ll give you the lowdown on what an easement is, the most common types of easements and what it means if there’s an easement associated with the property you’re interested in.
We’ll clue you in on some important terms and give you ideas on how to deal with easements you’d rather get rid of.
What Is an Easement?
An easement gives a person or entity a legal right to access property owned by someone else. It can also restrict what can be done on a property.
What the access involves and how the property can be used is typically detailed in the property deed. If the easement affects two properties, it is usually recorded in both deeds.
Easement example: You’re looking at a home that’s within walking distance of a park. There’s a footpath on your neighbor’s land that leads directly to the park, conveniently allowing you to avoid a busy public road.
Could your neighbor stop you from using the footpath to walk to the park? Enter: the easement.
Ideally, you wouldn’t need an easement to use the path. But an easement would grant you the legal right to use the path in case your neighbor denies you access.
What Are the Different Types of Easements?
There are many types of easements, and each one impacts a property – and a property owner – in a different way.
Let’s take a look at the four most common property easements: a utility easement, an easement appurtenant, an easement in gross and a prescriptive easement.
The most common type of easement is the utility easement. It gives a utility company (think: water, gas, electric or sewer services) legal access to a portion of your private property.
Easement example: With a utility easement, a municipal sewer authority can dig a temporary ditch on your lawn to replace a sewer line. Or your local electric company can cut down tree branches that interfere with power lines.
Knowing the details of the utility easement, and who the easement holder is, can help you avoid future issues. For instance, you wouldn’t want to go through the expense of building a shed only to be fined, or worse, having the shed demolished because it restricts a utility company’s access.
An easement appurtenant links two properties. One property allows the easement and the other property benefits from the easement. An easement appurtenant stays in place or “runs with the land,” even if the owner of either property changes.
Easement example: To access the house you’re thinking of buying, you need to drive up a driveway that sits on adjoining land.
With an easement appurtenant, even if the property with the driveway gets sold to another owner, the right to access the driveway stays with your property. And if your property changes hands, the new owner will still be able to use the driveway.
Easement in gross
An easement in gross allows a person or entity to use a portion of a property.
Unlike an easement appurtenant, an easement in gross doesn’t “run with the land.” It isn’t automatically transferable to the next property owner.
Easement example: There are several raspberry bushes on your property, and you’ve granted an easement in gross to a local fruit company to harvest the berries for jam.
If you sell your property, the new property owner can either honor the easement and allow the fruit company to continue picking berries or deny the easement, leaving the fruit company to search for a new source of raspberries.
Prescriptive easement (easement by prescription)
This is when someone has been openly using part of your property for years without you knowing it and without your permission.
Easement example: A neighbor builds a fence that encroaches on your land. If you don’t notice or object to the fence within a certain time frame, the person who built the fence can claim an easement by prescription.
The “certain time frame” your neighbor has to qualify for an easement by prescription depends on state law. It can be fewer than 5 years, more than 20 years or somewhere in between.
What’s the best way to prevent a prescriptive easement?
To try to avoid a prescriptive easement on your property, the best thing you can do is to stay vigilant. Know what’s happening on every square inch of your property at all times. Learn the laws of your state and regularly inspect your land so you can contest any infringements before the qualifying time frame for a prescriptive easement is up.
Common Easement Terms To Know
These terms are often used to further clarify just about any type of easement.
Dominant and servient estates
When dealing with an easement, you may encounter the terms “dominant estate” (or dominant property) and “servient estate” (or servient property). They represent the two parties in an easement agreement.
- Dominant estate: If you benefit from the easement – you have access to a piece of property you don’t own – you are the “dominant estate.”
- Servient estate: If the easement is on property you own, you are considered “burdened” by the easement (though there may not be much of an actual burden). This makes your property the servient estate. You’re legally obligated to grant access to the dominant estate.
Easement example: Let’s go back to the raspberry scenario. If you have an easement that lets you pick berries on someone else’s land, you’ve got the dominant estate. The owner of the raspberry-filled property has the servient estate.
Affirmative and negative easements
An affirmative easement gives the easement holder (aka the dominant estate) permission to do something. A negative easement restricts the actions of the easement holder (aka the servient estate).
Easement example: You’re the owner of a ranch home that looks over a lake. If you added a second story to your home, the neighbors across the street would lose their view of the lake from their property. In essence, they wouldn’t be able to access the view.
It would make sense in this case if your property already had a negative easement that restricts you from construction that blocks the neighbor’s view. Before taking any actions and starting any construction, it would be worthwhile to check for any negative easements.
Private and public easements
Whether an easement is private or public depends on who benefits from the easement.
- Private easement: This type of easement is typically put in place to benefit a specific group of people.
Easement example: A small neighborhood has permission to access and use a nearby piece of privately owned land for recreation.
- Public easement: This type of easement benefits the general public.
Easement Example: A nature trail that snakes through a portion of your property may be part of a public easement so everyone in the town can enjoy the entire trail.
How do you create an easement?
If one property owner uses someone else’s property or has the potential to use it regularly, creating an easement can be a good idea. This can help eliminate misunderstandings and potential legal troubles.
An express easement is the most cut-and-dried way to create an easement. It’s a written legal document signed by all parties.
An implied easement isn’t written down because there’s no need. The easement is obvious.
Remember our driveway scenario? The driveway to access one property sat on a neighboring property. An implied easement could work in this situation. Because access to one landowner’s house requires using a driveway on someone else’s property, the easement is implied.
Easement by necessity
Now, let’s say there is no driveway, but one needs to be built for the homeowner to access their home. This case could call for an easement by necessity. A legal agreement would be drawn up to grant an easement so a driveway could be built on the neighbor’s land.
Can an Easement Be Revoked or Altered?
Generally, an easement can only be revoked or altered if all parties agree to it or both the dominant estate and servient estate are owned by the same person. But, as with any legal matter concerning property rights, it’s best to consult with a real estate attorney.
Challenging an Easement
The easiest way to challenge an easement is to address your concerns and come to an agreement with the easement holder. Otherwise, challenging the easement will probably involve legal action.
Think about the possible consequences of legal action. If you see no other way to get the issue resolved, consult with a real estate attorney.
What Can Happen if I Don’t Do What the Easement Says?
Not abiding by an easement can get you into legal hot water.
If you don’t like the easement and can’t get it changed or revoked before you buy, you may want to do some heavy (re)thinking about the home. If you decide the easement is a no for you, ask your real estate attorney about your options. You might even be able to back out of purchasing the home.
Make Easements Easier: Ask First
It’s a good idea to ask your real estate agent – as well as your real estate attorney – about property easements while you’re house hunting. Ask first. You’ll be in the know well before you read the property’s deed or get ready to sign on the dotted line.