What Are Easements And How Do They Work?
Kevin Graham8-Minute Read
June 19, 2020
As members of a capitalistic society, we traditionally think that when we own something, it’s ours to do with as we see fit. However, going back to Roman and English law, there is also a concept of equitable property use. Essentially, you may be required to grant certain access rights to your property if doing so would aid in helping someone enjoy the full use of their property.
This concept is codified in a series of property law concepts for different types of easements. The good news is depending on the type of easement, these can be very common. It could be something as simple as providing for driveway or sidewalk access. They won’t necessarily hinder your ability to purchase a home.
This article will give you what you need to know about easements as well as how they affect your real estate transaction.
What Is An Easement?
An easement gives people or organizations the limited right to access and use your property for specific purposes. A couple of examples may help clarify the times in which an easement would typically apply.
There are situations in which utility companies may be granted an easement to do work on your property to maintain equipment and services for the community. In other instances, if your land is between a neighbor and their access to a public road creating a landlock situation, they may be granted been easement to regularly pass over your property to get to the road.
Are There Different Types Of Easements?
Several different easements may apply in different situations depending on the situation on your land. Here are some of the common ones you may run across:
- Utility easements: As mentioned above, these easements give public utilities the right to access and maintain equipment on your property in order to provide service to the community as a whole. These arrangements might apply with electric, gas, water and cable/internet providers. The easements provide necessary access to town infrastructure.
- Private easements: Private easements represent agreements between parties that the property owner will give the easement holder a right-of-way to suit a particular need. These can be sold or given by the owner of the property to the other party.
- Implied Easements: Implied easements aren’t written contracts, but if two neighbors have been using the property a certain way that can be proven by habit over time, should a dispute ever arise, an implied easement can serve as legal theory for the party who isn’t the owner to have an easement.
- Easements by necessity: An easement can be granted out of an absolute need if your property comes between your neighbor and access to a public road or other piece of necessary infrastructure. This can happen in landlocked situations, for example. This type of easement can be either written up or implied based on the fact that it’s necessary for the other party to fully use their property.
- Prescriptive easements: These may cause some of the most controversy. A prescriptive easement occurs when someone openly and blatantly uses your land on a regular basis for a particular purpose. For example, if kids regularly walk or ride their bikes across your yard on the way to school, they may establish a right over time to use your property in this way if you don’t challenge it.
How Does An Easement Affect Ownership Of My Property?
Once an easement is in place, it stays with the property. You can’t revoke an existing easement if there’s an agreement in place just because there is a change in ownership.
Given the easement, you have to grant the holder access to the property to the extent provided under any existing written or implied agreement. You don’t have the ability to block their use of the property for the limited purpose originally set out.
How Can I Find Out If My Property Has An Easement?
If there’s an existing easement on the property you’re looking at, it should come up as part of the title search process because they should be filed with the county ss a public record. If you have concerns and want to find answers regarding a particular property that you’re looking at, you should be able to find records with the county clerk. It’s best practice that these easements are recorded.
It’s also important to note that the majority of properties typically have some sort of easement. The most common by far is one that allows utility companies or public works departments to come onto the property when necessary.
If all this talk of owning a property and having certain rights gives you the impression that this could lead to some complicated, contentious legal situations, you’re not wrong. Anytime property rights are at issue, things can get a little hairy. Here are some common questions people have so that you can try to navigate this topic without too much trouble.
What Is An Easement Appurtenant?
An easement that runs with one parcel of land but benefits another is called easement appurtenant. The parcel that benefits is known as the dominant tenement, and the other parcel, on which the easement exists, is known as the servient tenement.
Let’s take a look at a couple of examples to see how this works. First, let’s consider a landlocked property. In this instance, there’s an easement appurtenant that allows your neighbor to access the public road even though they have to go over a portion of your property to get there. In this situation, your neighbor benefits and is the dominant tenement. You would be the servient tenement because even though the easement is on your property, you don’t benefit from it in the way your neighbor does.
Another way that you could have an easement appurtenant is if your neighbor had part of her she shed on your property. In this situation, your neighbor is clearly the beneficiary, and you’ve allowed it either through express permission or through the precedent set by many years of use. Your neighbor’s shed represents the dominant tenement, while your property is the servient tenement.
What’s The Difference Between A Prescriptive Easement And Adverse Possession?
While both require hostile, open and notorious use over a lengthy period of time, a prescriptive easement grants only a right of limited use to a property while a claim of adverse possession, if successful, confers outright ownership of the property to the trespasser.
Whether you’re dealing with a prescriptive easement or adverse possession, both require the property to be used in that way for a long period of time. Many state laws placed this time frame it anywhere between 10 – 20 years. Depending on what your neighbor gets to do as a result of the prescriptive easement, you may not believe it to be desirable. However, it’s not as bad as adverse possession, also known as squatters’ rights or homesteading. In the case of adverse possession, you may actually end up losing rights to your property. Every state handles this differently, but one of the easiest ways to avoid adverse possession is to just be present.
How Can I Prevent Someone From Acquiring A Prescriptive Easement To My Property?
You may be wishing to give someone access to your property for a specified purpose, but you don’t want there to be a prescriptive easement where, for example, it becomes commonly known that this space is used for parking or a right-of-way for everyone.
A prescriptive easement grants a trespasser the right to use someone else’s property for a limited purpose. It’s created when the trespasser uses the property in a hostile, open and notorious way over a period of time as defined by the laws of the state in which the property is located.
In this case, the easiest thing to do is get a written agreement together that allows specific non-owners to use the property for a limited purpose. The written agreement serves as proof that you’re allowing that person to use your property without forgoing other rights of property protection you may have. In this way, no one will have a claim to your property based on years of use. Anyone who would be using your property for any purpose without express permission would be a trespasser.
What Are Negative Easements?
A negative easement prevents a property owner from developing their property in ways that conflict with the easement. For example, if an adjacent property owner successfully claims a negative easement for light and viewscapes, the property cannot be developed in a way that blocks the light or views.
It’s a bit harder to explain a negative easement, but let’s give a quick example. Say you had a garden which you hoped got a certain amount of light during the natural growing season. No matter how big a fan of “Star Wars” your neighbor is, you can get an easement so that they can’t build a version of the Death Star so big that it blocks out the natural light to your garden. The other key here is that the limitation applies even if the model is entirely on the neighbor’s property. Another type of negative easement would be one that guarantees the dominant tenement the right to not have anything blocking the airflow to an area of their property.
How Do I End An Easement On My Property?
Easements have a couple of characteristics that make them unique when looked at in the light of most other legal agreements. Although the agreement may initially be between two people or a person and an entity, the easement ends up being attached to the property itself, meaning once the easement is in place, every successive owner of the property is obliged to abide by its terms.
In addition, there doesn’t always have to be a written or even verbal agreement in place. If it’s become common practice for people spoke on your property or use it as a shortcut to a destination, they can acquire the legal right to use the property for that purpose if they do it over a long period of time and you don’t object. Depending on the state, the amount of time this has to happen may be anywhere between 10 – 20 years typically, but it can happen through a prescriptive easement.
For these reasons, once an easement is in place, it’s very hard to get it removed. You may have options in your state or town, but if you’re considering challenging an easement, it’s helpful to get an experienced real estate attorney involved to go over your alternatives.
Summary: All About Easements
There’s a good chance you now know more about easements than you ever wanted to, but before we go, let’s review as these can affect your rights in any property you choose to buy.
An easement gives a non-property owner certain rights to an owner’s property. Almost every home has at least an easement or two because utility easements allow electrical, gas, water and telecommunications equipment on your property to be maintained. There are also private easements, where you can give or sell access to your property for a particular purpose. On the other hand, there are easements by necessity. For example, if your driveway is between a neighbor and a public road, they’re given a right to pass over your property on a limited basis to get to the road. Finally, prescriptive easements apply if your property is used over a very long period of time for parking or a shortcut, for example. If you don’t challenge it for years, people may have a permanent right to do this.
Unlike most agreements between parties, these are permanently attached to the property through successive owners. Because of this, it’s very hard to get an easement removed.
Easements that end up benefiting someone other than the property owner are called easement appurtenant. Examples of this might be a shed or garage that’s partially built on your property. A prescriptive easement is distinguished from adverse possession by the fact that while a prescriptive easement gives someone the right to use your property on a limited basis, adverse possession could actually allow someone to take over ownership of your property, depending on state law. Finally, negative easements are based in the idea that you can’t build anything on your property that would interfere with an adjoining landowner’s use of their property.
Easements can be a sometimes complicated and frustrating real estate law concept, but hopefully, this will help you feel more confident in what to look out for. Check out our other homeownership tips!
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