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What is an Easement?

July 2, 2019

An easement is a legal designation that allows for the right to use or enter the real property of another without actually possessing that property. This right is for a specific purpose and can be granted to either a public or private entity.

How Does an Easement Impact My Property?

The impact of an easement on a particular property can range from no perceivable impact to a major inconvenience. The type of easement is going to dictate the impact it has on the owner. 

If you are considering buying a property that has an easement, you definitely need to take the time to do some research in order to find out the specific terms of the easement. 

Easements are common, so before you decide to avoid a property that has an easement, you should learn a little bit about different types of easements and how they affect the properties involved. 

Types Of Easements

There are a number of different types of easements but they all fall into essentially two main categories, affirmative and negative easements. An affirmative easement is granted for a specific purpose in order to allow access or use while a negative easement is given in order to prevent someone from performing an otherwise lawful act on their own property.

Affirmative Easements

This type of easement gives someone the right to access your land for a specific purpose. One of the most common examples of this is a public utility easement. This is an easement that is created in order to allow the utility company access to service and repair utility lines or equipment. 

Another example would be if someone needs to be able to drive across the driveway of a neighbor in order to park their own vehicle. Or, if you own beachfront property and your neighbor can only access the public beach by passing over a section of your property.

This is called a right of way easement and allows only ingress and egress by the property owner in possession of the easement rights.

Negative Easements

A negative easement prevents the property owner from being allowed to do something on their own land. For example, if a property owner has a view of a mountain from their land, they could have an easement that prevents their neighbor from putting up a line of trees that would block that view. A negative easement is granted to protect the rights of one property owner when the actions of a neighbor could negatively impact their own property.

Other Easement Types

Express Easement

An express easement is created by a deed or will. Therefore it must be in writing. Additionally, it can be either Affirmative or Negative in nature.

Implied Easements

This type of easement arises as a result of a set of circumstances or a situation where the easement right is implied. We see this in situations where a larger parcel of land has been subdivided leaving one or more of the subsequent parcels landlocked. If there is no express easement in writing, there is an implied easement allowing the landlocked parcel ingress and egress.

For an Implied Easement to exist three conditions must exist:

  1. The easement must be reasonably necessary for the enjoyment of the original piece of property.
  2. The land must be divided or severed, such that the owner of a parcel is either selling part and retaining a portion or subdividing the property and selling pieces to different new owners.
  3. The use for which the implied easement is claimed must have existed prior to severance or sale.

Prescriptive Easements

A prescriptive easement is acquired by continuous use of another person or entity's property without their permission, this is also known as adverse possession. In order for a prescriptive easement to be granted, the person who is granted the easement must openly use a portion of another person's property for an extended period of time.

We often see these types occur in rural settings where large tracts of land are involved. A good example would be where someone builds a fence or outbuilding over the lot line of a neighboring parcel. If the fence or outbuilding exist on the neighbor's lot for a long enough period of time, a prescriptive easement may be obtained. In order to obtain a prescriptive easement, you must be able to demonstrate continuous and uninterrupted use throughout the statute of limitations period as prescribed by the appropriate state law. 

Preservation Easements

Preservation easements are generally used to protect against unwanted development or indirect deterioration of a piece of property. A preservation easement is usually granted to protect historic properties. Properties with historical and cultural significance are important for society, so even if you own the property, a preservation easement could prevent you from altering it in a way that is considered damaging. If you are considering buying a property that has a preservation easement, you need to understand that making any renovations to the property could be difficult.

How Do You Know If A Property You Are Interested In Has An Easement?

If you are worried that a property you are considering purchasing may have an easement, you can easily find out. During the title portion of the due diligence period of your real estate transaction, any recorded easements will show up in your title work. 

Reading through the title work will give you a chance to determine what type of easements if any exist. You will need to review the terms of the easement and possibly seek advice from a real estate professional or attorney in order to decide if you are comfortable with the easement. Title companies are another excellent resource for questions about easements, they deal with easement issues and questions on a regular basis. 

Most properties in a developed or master-planned neighborhood are going to have some type of express easement attached. These easements generally relate to public utilities or granting access to neighborhood amenities.

Can An Easement Be Transferred?

Easements are usually transferred from one property owner to the next even if it is not expressly stated in the purchase contract. However, if the easement was granted by the owner/seller it is possible for the easement to not be transferred to the new owner if it is expressly stated in the sales contract that it will not transfer.

Do Easements Have An Expiration Date?

Generally speaking, easements are meant to last forever unless the easement has specific language that spells out the end of the easement. It is possible to terminate them under specific circumstances. This provides protection to property owners in the event that the person or entity that has been granted the easement begins to abuse it. 

An easement can also be terminated if the property owner of the dominant estate purchases the property of the servient estate. 

Easements can also be terminated if they are abandoned. We see this especially along old railroad lines where certain easements were granted for things like grazing cattle on long journeys. Many of these easements were abandoned years ago because they are no longer necessary and many of the old railroad companies no longer exist.

Easements Are Legally Enforceable

When you purchased your home, you should have been made aware of any easements. The fact that you closed on the property meant that you agreed to adhere to any existing easements. If you have an easement on your property your best course of action is to simply cooperate.

Easements are legally enforceable, so trying to fight it is an uphill battle. So, do your best to get along with the other party. As long as they abide by the terms of the easement you shouldn't have any major issues. If however, they begin to abuse their privileges you can always look into trying to have their easement terminated. On the other hand, people who have been granted an easement would do well to treat the property owner with respect. Respecting the terms of the easement, as well as respecting their property is the key to being able to get along with them without having to deal with any disputes.

In Conclusion

Easements are an essential part of many neighborhoods, from a practical standpoint they allow fast easy access for utility companies, allowing them to provide a higher level of service at a lower cost. Additionally, easements increase the usability of common amenities in many communities, helping property values as well as the quality of life of those that enjoy the benefits of such easements.

When it’s time to buy your next home, don’t avoid properties that have easements. First of all, you’ll severely reduce the number of potential homes available and secondly, properties with undesirable easements are few and far between. If a home has a seriously restrictive or undesirable easement, you can bet the price will ultimately reflect its lack of desirability.

Research and understanding are the keys to making good decisions when it comes to properties with easements. Once again, it pays to do your homework.

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