Property Easements Explained, And How It Can Affect You

Real estate easements are more common than people realize. It's important to understand the various types of easements and how they affect you. A property easement gives someone else the limited right to use your land for a specific purpose. The most common easements include utility company access, shared driveways, or access to a pond. However, some easements are much more unfavorable. Before making an offer on a home, you should check to see if there are any existing easements associated with the property.

Types of Easements

There are several types of easements, each having different consequences and requirements based on the terms. Let's dig into the most common easements and explain how they can affect you.

Utility Easement

A utility easement is easily one of the most common, giving public utilities, such as water, gas, electric, and cable/internet companies the right to access and maintain equipment that is on your property to maintain services to the community. Utility easements do not give these companies freedom to do whatever they decide, just the right to perform what is necessary.

Public Easement

A public easement allows the general public the use of your property according to the easement. For example, a sidewalk that runs through your property that leads to a community park, the easement grants the public access to utilize the sidewalk at any time.

Private Easement

Private Easements are property that is sold or given to another party by the owner of the property. A neighbor may seek a private easement if they need access to the property. An example of why they would request a private easement is if they needed the space to install solar panels.

Homeowners need to be cautious when deciding whether or not to grant a private easement because it could affect the future homeowner. A private easement could potentially affect the sale of the home. Potential homebuyers could be discouraged from making an offer on a home with a private easement because it could take away potential plans for the property. Private Easements, depending on the terms, may not present any issues but, can limit what the property owner can do with the property in the future.

The title should list any private easements that are in place.

Easements by Necessity

Easement by Necessity is exactly how it sounds, created for situations when an individual must access your property out of pure necessity. This type of easement is granted when your property comes between your neighbor and access to their land. For example, your property is situated between your neighbor's home and access to the road.

Prescriptive Easement

A Prescriptive Easement occurs when someone actively uses your property over a certain period, it's become an implied easement. An example of the prescriptive easement would be if your children use your property as a shortcut without objection.

Easement Appurtenant

Easement Appurtenant is put in place when the property is the only access to something that is shared by both neighbors. For example, a private pond that is shared by neighbors but can only be accessed by way of the easement. This type of easement remains in place regardless of ownership, so if a home sells the easement is still upheld.

Easement in Gross

When a person grants a person or entity access or use of your property this is considered an easement in gross. This type of easement is irrevocable until the easement holder passes away or sells the property. An example of an easement in gross is permitting a friend to hunt or fish on your property.

How to Find Out If There is an Easement

Before making an offer on a property it is wise to find out if there is an existing easement that could affect you as most easements don't expire. You can find out if there is an easement by hiring a local real estate attorney or save the money and search for yourself. Here are the steps to discover if there is an easement on the property.

1. Go to the County Clerk's office or the County Land Records office, and request the prior deed to see if it lists any prior easements.
2. Contact the local Utility Companies to find out if they have a property easement.
3. Order a Property Survey, this will identify any easements and their location.
4. Request the owner provide a Warranty Deed. What is a Warranty Deed? This deed is a warranty or guarantees that the current owner has a legal title to the property and will show any property easements that exist.

Most easements won't cause any issues, especially if you are the easement user, giving you full access to utilize the property easement according to the terms of the easement.  However, if the easement exists on your property, you are the servient property and are required to allow the dominant property access to use your property according to the terms of the easement.

What Can You Do with a Negative Easement?

Easements will stay with the property or the owner depending on the type of easement, change in ownership does not always equal the termination of an easement. As a new owner, you are required to abide by the terms of the easement terms. If you disagree with an easement, you can hire a local real estate attorney to help you.

A solution that may work for you, without having to hire an attorney, talk to the party involved to see if they will release their easement rights or if they will consider allowing you to purchase their land. This would merge the properties and cancel the need for the easement. If they will release you from their easement rights, you need to make sure to record the termination with the local recorder's office, this will avoid issues in the future.

Related: what to know about shared driveways

Conclusion

Property Easements can be beneficial to all parties involved but, they can also create issues and can be restrictive to certain property rights. Taking the time to thoroughly search property to discover what property easements exist can save you from unnecessary headaches in the future.