You’ve found the perfect home on the perfect piece of land and you can’t wait to have it all to yourself. Not so fast. Among the other steps to take when buying a home, you’ll want to check for any easements. And if there are any, you may have to share part of your property in some capacity.
A property easement is a legal situation in which the title to a specific piece land remains with the landowner, but another person or organization is given the right to use that land for a distinct purpose. For example, a utility company may have an easement that allows them access to an electrical pole on your property. Or, you could have an easement on part of your property if it blocks access to a main road.
Dominant And Servient Estates
When it comes to easements, there are two terms you’ll need to know: dominant estate and servient estate. A dominant estate is the party that benefits from the easement, the party that can use the other’s property. A servient estate is the party that suffers the burden, or, in other terms, must allow the other party to use their property.
Types Of Easements
There are several types of easements, each with its own set of specific circumstances. If there is an easement on your home or you have one on another property, it’s important to know which type of easement it is, so you know your rights. Below, we’ll define each one and discuss how it works.
An easement appurtenant is a property easement that is not limited to a period of time or property owner but is instead, tied to the property itself. An easement appurtenant is often referred to as “running with the land,” as it remains in place even when the owners change. It’s an easement that benefits the property. An example of an easement appurtenant is a property that offers the only access to a private beach shared by two neighbors. When the home is sold, the new owners must allow their neighbors access to the beach via their property because the easement stays with the home.
Easement In Gross
An easement in gross is tied to a specific person or entity, not the property itself. It benefits the person who holds the easement. Utility companies often hold easements in gross to be able to build and maintain powerlines on or near a person’s property. Typically, the companies will have an easement in gross to use the property to access these lines.
A more personal example of an easement in gross could be one that allows a friend to use your property for hunting or a neighbor to use your pond for fishing.
An easement in gross is typically irrevocable and cannot be voided until the easement holder passes away or the home is sold. If the home is sold, the seller may transfer the easement to the new owner or the new owner can choose to deny the easement. However, if the easement is from a public entity like a utility company, you could be taken to court if you deny the easement.
While the easement can be transferred to new homeowners of the servient property, the easement holder cannot transfer their rights to use it to another person or business. Therefore, in the examples above, your friend cannot transfer the easement to another person so they can hunt on your property. And the electric company cannot give its easement to another company without the property owner’s consent. If a new person or business wishes to use the servient property, they must file a new easement.
Easement By Prescription
Easement by prescription, also referred to as a prescriptive easement, is created when a person continuously uses another’s land for a long period of time as if they had an easement. To get an easement by prescription, the following criteria must be met:
Continuous use for a specific period of time. Individual state law defines the time period that calls for an easement by prescription. For example, in the state of Michigan, someone must have been using the land for at least 15 years before they can get the easement. In California, it must be at least 5 years.
Open and notorious use. The use of the property must be obvious and observable, not done in secret.
Hostile use. The property was used without the owner’s permission. Despite the term, this isn’t always malicious. The person could be doing this unknowingly.
Exclusive use. This isn’t required in all states and the definition of exclusive use may differ from each state that requires it. Exclusive use could require that the use of the property cannot have occurred while the true owner of the property used it. Or, it could require that the property is used in a different way than what is intended for the general public.
Here’s an example of an easement by prescription. Let’s say you live on a waterfront property in California and a neighbor has used your dock for sunbathing and occasionally docking their boat. They never asked your permission, but they have been doing so for the last 5 years. They could get an easement of prescription to continue to use your property for such activities in the future.
Another example is if a neighbor unknowingly built their fence 3 feet over their boundary line onto your property and it was only discovered 15 years later. They may be granted a prescriptive easement since they meet all of the criteria above.
Affirmative Or Negative, Private Or Public
Whatever the type of easement, it can be a public or private easement and an affirmative or negative one. A private easement is one that grants land-use rights to certain people, whereas a public easement grants those rights to the general public. An affirmative easement allows someone to do something on the property, while a negative easement forbids it.
Creating An Easement
There are a few different ways to go about creating an easement. The method you use depends on the type of property you have, the reason for the easement and whether you can reach the easement amicably with the other party or property. If an easement needs to be created, it will happen in one of the following ways:
An express easement is the most common method of easement creation. It refers to one that’s put down in some form of writing, like a deed or will. It’s typically recorded in a legal document and signed by both parties.
Unlike an expressed easement, an implied easement is neither written down nor documented because it’s obvious, or implied, that the property would need to be used for the enjoyment and use of the other party.
Here’s an example of an implied easement. Let’s say you own a large piece of land on a main road and you decide to sell part of it. You sell half of your land (plot A) and keep the other half (plot B). The land is divided in a way that you can only access your land (plot B) by crossing the land you sold (plot A). So, when you sell plot A, it is implied that you can still use it to get to and from the main road.
Easement By Necessity
An easement by necessity, as the name implies, is created by law out of necessity, instead of by an agreement between neighbors. It’s usually created when the only reasonable and practical access to the property is through another’s property and an implied agreement cannot be reached. Once there is a new way to access the property (for example, if a new road or path is created), the easement can be terminated.
Rules Of Property Easement
Property easements can provide you or someone else the legal right to use a certain piece of land. They can benefit you as a homeowner or force you to carry the burden of others using your property. If you come across an easement in your homeownership experience, here are a few tips.
Buying A Home With A Property Easement
Before you purchase a home, you’ll read through documents called disclosures. These provide a buyer with more information, including anything that can negatively affect the value or enjoyment of the home. If the seller knows of any easements on the property, they are legally required to list them in the disclosures. That’s one way to learn if the home has easements. Another way is to visit the local assessor’s office or county clerk’s office at the county courthouse. They are typically listed on the property deed.
If the home has an easement, don’t fret just yet. While it could be an annoyance, it could very well benefit you as the homeowner. Or it could be an entirely neutral experience. When buying a home with a property easement, find out the purpose of the easement and make sure you understand how it could impact your homeownership experience. For example, if the easement is for a utility company to lay underground lines on your property, you may not be able to install that inground pool you were hoping for.
Of course, it might not even matter. If it is an easement appurtenant, it will stay with the property and you’ll need to deal with it. However, if it’s an easement in gross, it may not transfer over with the sale of the home.
Abiding By An Easement
An easement is legally binding and must be followed. If it’s not, you could be hit with a lawsuit, whether you have the dominant or servient property. For example, if the only way your neighbor can access the public beach is by crossing your property and you prevent them from doing so, they could sue you. However, if the easement states that they can only use your driveway to get to the beach and they start walking all over your property, you could take them to court.
To properly abide by an easement and ensure the other party is doing the same, make sure you understand each party’s rights. If you have questions or seek to understand more, consult a real estate lawyer.
Challenging An Easement
An easement can be challenged, but it’s an extensive process that may involve going to court. The process could be easier if the easement holder agrees to terminate the easement or if it has an expiration date. Otherwise, you may end up in court, in a complex dispute that often carries a lot of emotion if it involves neighbors. We recommend consulting a real estate lawyer to learn more about challenging an easement.
Understanding easements is just one part of knowing your rights and responsibilities as a homeowner. To learn even more, check out our Learning Center to get more information on buying a home, getting and managing a mortgage, and handling taxes and insurance.