Published
-
Written by
-
Edited by Kristy Snyder
Written by Greg Isaacson
Edited by Kristy Snyder
Types of easements | Most common examples | Effect on property value | Legal implications | Terminating an easement | Buyer’s guide | Seller’s guide | FAQs
An easement is a right granted by a property owner. It allows another person or organization to use part of the owner’s land or property for a specific purpose.
You might uncover an easement through a property title search when you’re trying to buy a home. If you’re a homeowner, easements on your property may allow a neighbor to use a shared driveway, another person to pass through your land, or a utility company to access your property to repair electric power lines.
KEY TAKEAWAYS
- Easements allow people or organizations to use a portion of a property they do not own.
- Easements usually have a minimal impact on the value and use of the property, but there are exceptions.
- Easements can be a source of legal disputes between homeowners and their neighbors or others accessing their property.
- Home buyers should do a thorough title search to identify any easements on the property before they close the deal.
Should I be concerned about easements?
Maybe. Easements can sometimes impact the value and use of your property. Also, property owners and the people accessing the property can sometimes get into easement-related disputes.
The best way to avoid easement problems as a future homeowner is to be proactive and do your research.
Make sure you identify and understand all the easements on the property you’re buying. To do this, hire a title company to complete a thorough title search after you’ve signed the purchase agreement. If you purchase title insurance (and you should!), you’ll receive a title commitment disclosing all recorded easements before closing.
Problems tend to arise when the buyer fails to appreciate an easement’s significance. For example, the buyer may not understand all the restrictions the easement places on the use of the land. Another snag can arise if the title company fails to record an existing easement.
To make sure they don’t get in any legal trouble, home sellers should fully inform buyers of any easements they know about. Disclosure laws vary by state, but in some states, such as California and Wisconsin, sellers are legally required to disclose any known easements in writing.
Complicated as they can be, easements are often the least of your headaches as a home buyer or seller. A seasoned real estate agent can help you navigate the complexities of the transaction.
Types of easements
There are three main types of easements: easements appurtenant, easements in gross, and easements by prescription (prescriptive easements):
| Common types of easements | Definition | Example |
|---|---|---|
| Easement appurtenant | An easement that benefits one parcel of land over another parcel of land | Utility easement (electrical company granted access to electrical poles) |
| Easement in gross | An easement that allows an individual or entity the right to use someone else’s land or property | Friend allowed to fish on a lake on one’s property |
| Easement by prescription / prescriptive easement | An easement granted by a court after a party or entity uses another’s land continuously for an extended period of time, uninterrupted, and without permission. This type of easement is the most likely to cause problems. | You have used your neighbor’s property to access a lake for 20 years |
How are easements created?
There are three ways easements can be created — sometimes even without the property owner’s knowledge!
- In an express easement, two parties sign a document outlining the specifics of the easement.
- An implied easement is unrecorded and usually favors one property or land owner.
- An easement by necessity is created when one party has no choice but to use another’s property — for example, a neighbor has to cross through your property to access her own house.
Most common examples of easements
You might be surprised at how many kinds of different easements exist. Here are some of the most common examples you might encounter as a homeowner:
| Easement example | What it does | Implications for owner |
|---|---|---|
| Utility easement (Gross) | Allows a utility company to run infrastructure such as power lines and pipes over, on, or under your property | You may not be able to build in that area. Infrastructure may be unsightly/loud. Utility company can access your property for maintenance/repairs |
| Sidewalk easement (Appurtenant) | Allows the government to build a sidewalk on your property | Members of the public can walk on your property (the sidewalk) |
| Driveway easement (Appurtenant) | Gives two neighboring properties the right to share a driveway | Common source of disputes between neighbors over maintenance/repair and blocking of the driveway |
| Drainage easement (Appurtenant) | Gives a city/municipality access to your property to prevent water from pooling or flooding | You generally can't make improvements such as fences and walls in that area. May impact insurance premiums and future construction plans |
| View easement (Appurtenant) | Protects another property owner’s view | Can prevent you from building over a certain height |
| Conservation easement (Gross) | Protects and preserves land for wildlife refuge, public recreational use or open space. Usually sold or donated by the property owner to a conservation organization | Restricts the use of the land and generally prohibits development. The conservation org is responsible for overseeing the land. Usually provides tax benefits for the owner |
How do easements affect property value?
Easements usually have a minimal effect on a property’s value unless they severely restrict its use. Conversely, certain types of easements can boost the value of the property.
It all depends on the nature of the easement. For example, high-voltage power lines running across a property can be unsightly (and noisy!) and restrict the use of the land. This would be an example of a utility easement lowering the value of the property.
Likewise, easements preventing the homeowner from renovating or expanding their home could decrease the home’s value. Shared driveways are undesirable to some buyers, which could also put a dent in the property’s marketability.
On the other hand, there are situations where easements actually make a property more attractive. Conservation easements can sometimes bring federal tax deductions and reduce property taxes. An easement affording access to a landlocked parcel can greatly boost the value of that property.
In general, the larger the easement relative to the property, the bigger the potential impact on the property’s value. Easements also tend to have a greater impact on urban properties than rural ones. For example, an easement for an overhead electric line may dampen the value of an urban townhouse with a tiny backyard, while a similar easement is barely noticed on the edge of a sprawling, 100-acre rural property.
Legal implications of easements
Easements are legally binding. Part of what this means is you can’t prevent the easement from being accessed as intended.
Another way of putting it is that the property owner (or easement grantor) can generally make use of their property as long as it doesn’t interfere with the rights of the person holding the easement (the easement holder).
Easement grantors have all the obligations of property owners. For example, they still pay taxes on the portion of the property affected by the easement. Easement laws vary from state to state, so you should consult a real estate attorney if you have any legal questions.
How to terminate an easement
Sometimes easements outlive their usefulness and need to be removed. Most easements continue indefinitely unless they are terminated, so you will most likely need to take action if you have an unwanted easement on your hands.
The Georgia Institute of Real Estate outlines six ways to terminate an easement:
- Release: The easement holder provides a written release to the easement grantor.
- Merger: Both properties (those owned by the easement grantor and easement holder) come under the same owner, eliminating the easement.
- Expiration of purpose: If the easement was granted for a specific, temporary purpose that has ended, like access to a construction site, it terminates automatically once that purpose is complete.
- Abandonment: The easement holder ceases to use the property and no longer intends to use it.
- Prescription: The property owner openly and continuously prevents the easement holder from using it for a certain period of time.
- Necessity: The easement can be cancelled if the easement holder no longer requires use of the property. For instance, a landlocked neighbor gains access to their property by buying an adjoining piece of land, ending the need for access through your property.
Don’t assume an easement will disappear on its own. For example, if a neighbor has an easement allowing her to use your driveway, that easement will persist even if the neighbor hasn’t set foot (or tire) on your driveway for years. She will still need to provide a written release to extinguish the easement.
As a homeowner, you may find yourself at odds with a neighbor or other easement holder about the need for an easement, the way it’s being used, or the respective obligations of each party. You may even find yourself challenging an easement in court.
You’ll want to consult a property attorney with any questions over easement rights. An attorney can also help identify valid easements on your property, negotiate an easement, and represent you at court hearings.
A buyer’s guide to easements
As a prospective buyer, you must take all necessary steps to identify any existing easements on the property. If you have any, you need to decide if the easements are acceptable to you:
- Are they unsightly? (E.g. power lines)
- Will they invade your privacy? (E.g. a sidewalk)
- Will they restrict your use of the property? (E.g. by preventing you from building on the land)
Ways to identify easements
Fortunately, there are a number of ways to find out what easements exist on the property you’re considering buying. Your first priority should be to do a thorough property title search — an examination of public records to make sure there are no claims, liens, or other issues that would interfere with the sale.
The attorney or title insurance company performing the title search will uncover any easements through this process. You can also conduct your own title search by looking up the property deed in the county clerk’s office. Other sources that may have information about specific easements include the local utility companies and the city tax assessor’s office.
Don’t forget you can also do a personal inspection of the property to see if there are any visible easements. Look out for things like power lines and telephone or cable boxes. The utility company’s right-of-way is generally located between those structures and the street.
What sellers and owners need to know
When selling a house, you are obligated to disclose all known easements to the buyer.
It’s a good idea to find out whether your property has any easements you don’t know about. Inspect your property to make sure neighbors aren’t encroaching on it. If your neighbors have been using your land openly and continuously over a certain period of time, there could be a prescriptive easement on that piece of land.
Each state has a statutory period of time required for an easement by prescription. For instance, Connecticut law establishes a prescriptive easement after 15 years of uninterrupted use of the land.
Considerations for homeowners
Even if you’re not preparing to sell your home, the best way to avoid easement-related problems is to take full responsibility for your property and be courteous and mindful of your neighbors.
For instance, if you have a shared driveway easement, uphold your duties to repair and maintain the driveway, and don’t do things that would ruffle feathers, like blocking the driveway with your car.
It’s also important for you to understand your obligations according to the easement. If you know the neighbor has a view easement, don’t build in a way that would block their view. Common sense and respect can save you a lot of grief, and possibly legal bills, down the road.
FAQs about easements
Why should I care about easements?
Easements are legally binding and create certain burdens and restrictions for the homeowner. An underground utility easement could prevent you from expanding your home in the future. Some types of easements can negatively impact the value of your property and may even generate legal disputes with neighbors or people using your property. Prospective home buyers should be aware of any easements on the property to head off potential problems down the road.
How do I find out about easements on a property I am buying?
There are multiple ways to identify existing easements on a property, starting with a thorough title search. You can also visit the county clerk’s office to look up the property deed, check with utility companies, and contact the city tax assessor’s office. You can even discover many easements with a simple visual inspection of the property.
What are the various types of easements?
Easements fall into three broad categories: easements appurtenant, easements in gross, and easement by prescription (or prescriptive easements). Examples of easements appurtenant include drainage, sidewalk, driveway, and view easements. Easements in gross can include utility and conservation easements. If your neighbor has been crossing over your property to park her car for 20 years, that may create a prescriptive easement.
Related reading
How to Research a House’s History Before You Buy: A thorough primer on doing your due diligence as a buyer. Learn how to uncover easements and other issues a title search might miss.
What Is a Property Title Search?: Everything you need to know about ensuring the title on the home you’re buying is clear.
Do I Need a Real Estate Lawyer to Sell My House?: Easement disputes are not the only situation in which you may find that you need a real estate attorney.
Leave a Reply