What Are Easements, And How Might Having One Affect My Property?
Jamie Johnson8-minute read
February 27, 2023
Imagine you’re closing on a new house, and when you receive the title abstract, you learn the home is encumbered with an easement. This easement gives another party the right to access your property without your permission and in ways you don’t necessarily agree with.
This scenario is unlikely, but it does happen. Easements are actually a lot more common than you may realize. If you’re considering buying a home, it’s a good idea to understand what easements are and how they can affect your property rights.
What Is An Easement In Real Estate?
An easement is defined as the grant of a nonpossessory property interest that grants the easement holder permission to use another person's land. Easement itself is a legal term for a type of property right held by the users of the easement.
In more conversational terms, an easement gives a person or named entity – for example, the students attending a particular school that abuts your yard – the right to access your real property, for a limited and specific purpose.
Easements can affect property owners in a couple of different ways. An affirmative easement, like the right to cut through your yard to get to the school beyond it, prevents you from blocking the easement owner’s access to your property. A negative easement might prevent you from developing your property in such a way that it blocks your neighbor’s views and access to light.
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How Does An Easement Work?
If there’s an easement held on your property by an individual or entity, that party has the right to access your property within the guidelines set by the easement. For instance, local utility companies typically hold easements in case they need to access power lines or cables on your property.
On the other hand, if you hold an easement, you have the right to access property you don’t legally own. A good example of this would be if you have to cross someone else’s property to access your home.
Should I Walk Away From A Property With Easements?
In most cases, there’s no reason to walk away.
At first glance, easements may sound problematic, but they’re actually very practical in most situations. It’s easy to understand why it can benefit you or your utility company to have access to your property.
Sometimes, easements are created for the benefit of the entire neighborhood, such as a safe path to school for neighborhood kids.
But it’s still a good idea to do your research any time you’re selling or buying a house. Just as you should always start your home buying journey with a preapproval, you should always end it by performing a property title search to learn whether the property you want to buy is encumbered by liens or easements. This information will help you understand the different types of easements that exist and what they mean for your property.
Types Of Easements
There are many different types of easements, and each one can mean different things for your home. Here’s an overview of the four different types of easements you’ll commonly encounter.
A utility easement is created by state or local law, and it gives utility employees the right to access infrastructure located on private properties. Utility easements are sometimes categorized as affirmative easements because they give the utility company legal access to your property, but only for a specific use.
When you purchase a new home, it’s common to find pre-existing utility easements on the property. While this may sound like a troublesome situation, utility easements are beneficial to most homeowners. If you want your home to have running water, electricity, cable and sewer systems, then you’ll need a utility company to manage these services.
When there’s a problem, your utility company will need to access your cables or sewer system to make repairs. This type of easement doesn’t give utility companies free rein to do whatever they want on your property. However, they may be able to install new equipment as long as it’s for the good of the community. This is legal regardless of whether you agree with their decision to make changes.
Some utility easements can even put limits on what you can do with your property. For instance, you may be prevented from planting trees or installing any equipment that could interfere with local power lines.
Private easements are property rights that can be created and sold or given by the property owner to another party. For instance, let’s say your neighbor wants to access your land to install solar panels. You have the right to either grant access or refuse to sell a private easement.
Where private easements become tricky is when they have the potential to affect future homeowners. For example, if you grant your neighbor a private easement, this can affect anyone you sell the home to in the future. That’s why it’s always a good idea to check if there are any private easements on a property before buying a home.
Private easements may not be a problem, but depending on the terms, they can limit what you’re able to do with your property. Private easements should be listed on the title.
Easements By Necessity
Easements by necessity are created for those situations when another individual must access your property. These will sometimes be called access easements and are created because of the government’s long-standing interest in making the land productive.
An example would be living in a rural area and your neighbor is landlocked and can only access the road by crossing your property. In this situation, an easement by necessity would be created, and your neighbor would have the right of way.
You don’t have the right to stop this type of easement because it would cause an unnecessary burden to your neighbor. You’d be negatively impacting your neighbor’s right to access the main road.
A prescriptive easement is a property right granted to someone who doesn’t own the underlying property. The easement is created because the non-owner had already been using the property in a hostile, open and notorious manner for a period of time as defined by the laws of the property’s state.
Suppose that your neighbor starts parking in your driveway without your permission. You don’t stop them, and they continue to do it year after year. As unfair as it may seem, by illegally accessing your property, they can gain a right to access it. That’s because the court could see your failure to stop them as an act of concession on your part.
If you feel like someone’s repeatedly trespassing on your property, it’s essential to act quickly. Failure to act could result in the court granting your neighbor a prescriptive easement to access a portion of your property.
FAQs About Property Easements
With so many different types of easements, it’s easy to find this real estate subject confusing. Below are some common questions home buyers often have about easements and ownership rights.
How will an easement affect my ownership of property?
Easements can affect ownership and limit your ability to do certain things on your property. That’s because the only limit created by an easement is that the property owner can’t block or otherwise hinder the easement holder’s use.
Some easements will benefit you as a homeowner, but others can cause a burden. Whereas an easement always benefits the person who has been granted the right to an easement.
To illustrate, there are apparent benefits to utility easements. You want your utility company to be able to access and maintain power lines on your property. But there’s also nothing you can do if your local utility company installs equipment that’s an eyesore and negatively affects your property value.
How do I know if a property I’m interested in has an easement?
Any time you’re considering buying a home, you’ll want to research and find out if there are any easements on that property. A title search will generally notify a prospective buyer when easements affect the home they’re looking to purchase.
However, not all easements have been properly recorded. This situation can happen when an easement is in the process of being created or if an easement has been created and never recorded. Some properties may have implied easements, which are easements that are not written down or noted in a legal document, but only exist when there is a need for them.
Almost all homes do have some kind of easement on them, and most easements are not problematic. The important thing is to know about them ahead of time because most easements don’t come with an expiration date.
They typically will run with the land, which means they don’t expire when property ownership changes. If you’re concerned about an easement on a property you’re considering buying, it’s a good idea to consult with a real estate attorney.
What’s an easement appurtenant?
An easement appurtenant is when an easement runs with one parcel of land but benefits another. The parcel that benefits is called the dominant tenement, or the dominant estate, and the other parcel on which the easement exists is called the servient tenement, or sometimes the servient estate.
Imagine you own a vacation property with access to a public beach and the only way to access the beach is by crossing through your property. In this situation, an easement appurtenant would be created to give the other residents in that community the legal right to cross your property to access the beach.
Your property is the servient tenement since it’s burdened by an easement, and the beach is the dominant tenement since it benefits from the easement.
What’s the difference between a prescriptive easement and adverse possession?
A prescriptive easement is similar to but different from adverse possession. Both are legal doctrines that give a non-owner the right to access your property by open and notorious use.
However, there are a few differences between the two. Adverse possession is considered a negative easement, and it typically involves some type of trespassing over a lengthy period of time.
The time frame is determined by state law but typically occurs over a 10 – 20-year period. In comparison, a prescriptive easement grants a limited right, usually by necessity.
There are a few ways to determine whether an easement is a prescriptive or adverse possession. The first is to consider the intent, and the second is to consider the actions of the non-owner.
In a prescriptive easement, the goal is simply to use the property in a specific and nonpossessory capacity. Whereas with adverse possession, the intent and actions of the individual are done to claim full ownership.
How can I prevent someone from acquiring a prescriptive easement to my property?
If you feel like someone is trying to obtain a prescriptive easement to your property, it’s important to act quickly. Anything you do to assert your property rights over a trespasser before the easement is created will defeat the trespasser’s rights.
A hostile, open and notorious trespass, which could lead to a prescriptive easement, can be defeated simply by giving permission to the trespasser. It could also be defeated simply by building a fence to prevent them from crossing property lines.
In particular, if your neighbor is repeatedly using your driveway, the easiest way to avoid an easement is by giving them permission. Now your neighbor is no longer trespassing on your property but has permission to use it for a specific purpose.
This will also protect you if your neighbor sells their home. If you give the current resident permission to your driveway, this prevents any future owners from claiming a prescriptive easement.
The Bottom Line: Easements Are A Routine Feature Of Real Estate Transactions
Buying a home with a property easement doesn’t have to be a bad thing. Many types of easements can be beneficial to both the homeowner and the easement holder. However, they can also create issues and restrict certain property rights. To protect yourself and your investment, you should take time to thoroughly research your prospective property to find what types of easements it could have.
Looking at a home with a property easement? Make sure you get approved before making an offer so you can present your most compelling case to the seller. You can also give us a call at (833) 326-6018.
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