Tips & AdviceWhat is An Easement?

What is An Easement?

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Just as you might expect, there is a lot of overlap between the legal and real estate communities. And even though the homebuying process often seems fairly straightforward, there are quite a few things on the legal side that could complicate your purchase.

This includes easements, which, as we will further explain throughout this article, can give your neighbors and other parties the right to access certain parts of your real property.

In some cases, an easement probably won’t seem like very much of a big deal. For example, if your neighbor needs to briefly use your driveway to access their own, an easement gives them the legal right to do so. In other situations, the easement might be a bit more complicated. This is why before you buy a home, you should check whether an easement applies to your property.

What is an Easement in Real Estate?

Legally, an easement is defined as “a non-possessory right to use another party’s property for a clearly defined purpose that does not interfere with the owner’s right to use the same property.”

This definition contains a few very important terms. To start, the term “non-possessory” means that while the other person might have the right to use the property, they are not the property owner. As a result, they will not be able to make changes to the property they are given access to. Nor would they be able to sell it or use it as collateral when applying for a loan.

The term “clearly defined purpose” also pulls a lot of weight. Easements don’t exist just for the sake of existing. There needs to be a legally defendable reason for an easement in the first place. For instance, “I want to swim in your pool” is not a good reason for getting an easement. A reason such as “I need to cut through a part of your property to access my home” is a much more valid reason and is likely legally defendable.

The final part of the definition, “does not interfere with the owner’s right to use the same property,” also plays an important role. This means that while an easement might give your neighbor the right to “cut through” a small part of your driveway, it does not give them the right to block you in or park their car there. If they choose to do so, they would be violating the terms of the easement, which could result in legal consequences if escalated further (fines, loss of rights, etc.).

Common Types of Easements

You may encounter many different types of easements when you purchase a property. Generally, most easements will neatly fall into one of two categories: affirmative easements and negative easements.

Affirmative easements are the most common type of easements in residential real estate. These easements affirm the right for your neighbor to do a given activity they would otherwise not have the legal right to do, such as temporarily accessing your property. The driveway example included above is a common scenario of an affirmative easement, which might sometimes be referred to as a “right of way” or “access” easement.

On the other hand, negative easements are not nearly as common. Rather than granting rights to one party, negative easements limit rights. Suppose the primary driver of your property’s value is its breathtaking views from the second-floor balcony. If the neighbor decides to build a structure that blocks these views, the property will lose a significant amount of value.

You could simply hope the neighbor never chooses to build such a structure. Or, you could try to get an easement that legally limits their right to build above a certain level.

Of course, just because one party wants to create an easement doesn’t necessarily mean the easement will be granted. If the parties cannot agree on whether to create an easement, it might eventually need to be contested in court.

You may encounter a few other types of easements, as listed below. 

Public Easement

A public easement is a type of affirmative easement that extends rights to the general public to use your property. Suppose your land blocks access to public accommodations (parks, beaches, etc.). The government might initiate a public easement giving people the right to reasonably access public accommodations through your property without trespassing.

Implied Easement

You might also encounter an implied easement. For example, if there is a storm drain on your property (owned by the public), then it will be implied that the government could access that drain—including cutting across your yard, if necessary—in the event it needs to be repaired.

Easement by Necessity

An easement by necessity occurs when an easement must exist. For example, if one property owner becomes landlocked and can’t access their property without passing through another, an easement of necessity will be created. 

Prescriptive Easement

A prescriptive easement allows someone to access the property for “very specific reasons.”  This type of easement often occurs when the property owner fails to realize that the property is being used. 

Suppose your next-door neighbor built a fence on your property, and you let it be for several years. This may result in a prescriptive easement. While it may seem unfair, this illegal access ultimately could give them access to your property, depending on the state law and requirements, as the court could deem your inaction as accepting such access.

To avoid a prescriptive easement, you should know where your property lines are, so you can take action if your neighbor or anyone trespassing on your property, whether knowingly or not.

> Learn more: How to Find a Good Real Estate Lawyer?

How to Find an Easement on Your Property

The best way to search for easements on your real property is to do a title search. The title company can generate a title report containing all your property’s easements. If you’re considering buying a home, it’s crucial that you conduct a title search so you are aware of any easements that may affect your property value. Your lender may also require that you purchase title insurance.

Additionally, you can also check for easements on your own. Depending on which county you live in, property deeds, which contain information regarding easements, are kept either at the county clerk’s office or the assessor’s office.

How to Remove an Easement

If you want to remove an easement, start by reading the fine print. In many cases, there will be a set expiration date for the easement, meaning it will eventually end on its own. In some states, the statutory provisions specify that easements expire after a set number of years unless re-recorded. There also might be a specific use clause on the easement that could cause it to end. 

In the case of easement by necessity, the end of necessity will terminate the easement automatically. Let’s say your own a landlocked property. You, therefore, enjoy an easement by necessity to access the highway through your neighbor’s property. Now, a new road has been developed, and you can therefore access the highway without passing through your neighbor’s lot. The easement of necessity, in this case, ends when the new access is established. You, therefore, lose your right of access.

If there is no “natural” way out of the easement, notify the other party. They might agree to end it, or they might contest it. In the event you want to challenge an already established easement, you will likely need to go to court. You will need to provide evidence that the easement is no longer required or that the easement is being abused. In some cases, you may need to prove financial damages from the easement in some way.

Should I Buy a Home with an Easement?

Many people tend to avoid homes with easements because they feel it limits their rights without providing substantial benefits. But easements are a common part of real estate transactions, and there are tens of millions of homes with easements. Most easements generally do not cause any problems or affect the property value. However, some do create tricky situations and therefore restrict your rights. Ultimately, this all comes down to what the easement actually entails. This is why you should always check for easements before you buy a home.

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