What is an Easement?

Sometimes, when purchasing a home, a buyer will discover that there is an easement on the property. Property easements are legal situations in which a landowner retains the title of a piece of property, but gives another person or entity the right to use it for a different purpose.

Land easements do not affect your ownership but can affect certain property rights. We’ll explain everything you need about easements, including how to determine if your property has been affected.

Definition and examples of easements

An easement, as stated above is a property right that allows a person to use the land of another for a particular purpose. A utility company, for example, may have an access easement to your property that allows it access to a pole of electricity. An easement could be granted on a part of your land if it prevents access to the main road.

The dominant estate or dominant tenement is the party who benefits from an easement and has usage rights. The servient estate or servient tenant is the party that holds the burden of an easement. They allow the other party to utilize their property as long as they retain possession of the title. A title company can help.

How does an easement work?

Easements can be protected by informal use or legally documented through property transfers. The type of easement that is applied to your land will determine the final easement rights.

Types of easements

There are different types of easements. Each has its own specifics. It’s important that you understand the type of easement you have on your property or another. This will help you to understand your rights.

Categories of easements

There are three types of easements. Each can be either a private or public easement. It will also be either affirmative or negative.

A private easement gives land use rights only to a few people. In contrast, a public easement extends these rights to all. An affirmative easement permits someone to do something with the property while a negative one prohibits it.

It’s crucial to review all property disclosures, and look for easements when you are house hunting. You’ll be able to understand your rights as a homeowner.

Easement appurtenant

A property easement is one that does not have a time limit or a specific property owner. It is tied to the actual property. It is also known as an easement appurtenant, as it stays in place when owners change. It is an easement which benefits the property.

Easement appurtenant example

If you sell a property that has access to a beach shared between two neighbors, then the new owners are required to allow their neighbors to access the beach through their property. Since the easement is tied to the property, it won’t be affected by a change of ownership.

How can title insurance help with an easement?

Easement in gross

An easement in gross is not tied to the property, but rather a person or company.

An easement in gross is usually irrevocable, and it can only be revoked when the owner of the easement passes away or if the house is sold. The seller can transfer the easement from the previous owner to the new one, or the buyer may choose to refuse the easement. If the easement comes from a public company like a utility, you may be sued if you refuse the easement.

The easement holder cannot transfer the right to use the property to another business or person. A new owner or utility company that wishes to use servient property must apply for a new easement.

Easement in gross example

Utility companies hold easements in gross to construct and maintain power lines on or near private property. Utility companies usually have an easement in place to allow them access to the lines and property.

An example of an easement in gross that is more personal could be allowing a friend access to a shared trail on your property.

Easement by prescription

Prescriptive easement is also known as easement by prescription. It occurs when someone uses the land of another person for a prolonged period as if it were their easement. It is not the same as adverse possession which gives legal title rights to encroachers. The following criteria must be satisfied to get an easement through prescription:

• State laws vary on the amount of time that must be used continuously. In Michigan, for example, the person must have used the land at least 15 consecutive years to be eligible for an easement. California law requires that you have used the land for at least five years.
• Open and observable use: The property’s use must be open and obvious – it cannot be done secretly.
• Hostile Use: The property is used without permission. This is not always malicious, despite the name. This person may be unknowingly doing it.
• Exclusive use is not required by all states, and laws may have different definitions of the term. Exclusive use can mean that the owner of the real estate cannot use it or that it must be used differently than intended.

The easement by prescription example

Imagine you own a waterfront property on the California coast and your neighbor uses your dock to sunbathe and dock their boat occasionally. The neighbor has been using your dock for 5 years without asking you permission. They may be able to get an easement to continue using your property in this way.

A neighbor may have unknowingly constructed their fence on your property 3 feet beyond their boundary line, and only 15 years later discovered it. If they meet the above criteria, a prescriptive easement may be granted.

There are other types of easements you should know

It may be useful to know the types of easements when learning about them:

• Utility easements. As mentioned earlier, utilities are granted the right to access infrastructure and power lines on private property. State or local laws create this type of easement.
• Easements created by necessity: These easements are created when someone needs to gain access to your property. For example, a neighbor may need access to a main highway by crossing your property. Property owners do not have the right stop or remove easements that are created by necessity.
• Private easements are created by property owners and can then be given or sold. Private easements can be found on the title of a property and affect future owners.
• Public easements allow property access to the public. A public easement could, for example, allow beachgoers access to a public beach via a path on your property.

How long do easements last?

The type of easement that is applied to the property will determine how long it lasts. In general, easements are valid until challenged. However, some types of easements can be denied if the property is transferred.

Appurtenant easements will remain in place as long as the easement is not challenged. This applies even if a property changes hands.

The easement in its entirety will last until the property is sold to a new owner. Even then, it may be transferred depending on what purpose it was created for. If an easement was granted to a utility to allow access to the property, it will be retained by the new owner.

Prescription easements, such as allowing your children to walk across your yard for years to get to school, will continue to exist until a substitute is found that eliminates the original need. If the easement is not formally attached to a deed then the dominant estate may challenge the property owner in court if they violate the easement.

How to create an easement

You can create a land easement in a number of ways. It depends on what type of property is involved, why you want to create an easement, and whether or not you can agree with the other property owner. It is possible to create an easement in several ways.

• The most common method of creating an easement is through an express easement. This is a written agreement that’s included in a will or deed and signed by both parties.
• Implied easement is a non-legally recorded agreement that’s based on a need. You might sell a part of your property but still require access to it to reach the main highway.
• Easement of necessity: If an implied agreement cannot be reached, but an easement is clearly needed to gain legal access to the property, you can seek an easement of necessity. Consult a real estate lawyer to take this issue to court.

If you require written legal documentation for an easement, then you will need to contact an attorney who can draft the documents. You may include these in your will or deed. A property survey or other steps may be needed depending on the agreement of the dominant estate and the subservient.

How to find an easement on a property

You will read disclosure documents before you buy a house. These include any information that could negatively impact the enjoyment or value of the property. The seller is legally required to disclose any easements that exist on the property.

You can also consult with these offices or professional services in order to identify easements on your property:

• Local Assessor’s Office
• County Clerk’s Office
• Utility Companies
• Search for Property
• Title Search

What to do if the home you’re buying has an easement

Don’t worry if the house has an easement. It could be a nuisance, but it may also benefit you. It could also be a completely neutral experience.

Find out which type of easement is on your property. You’ll be bound by the easement if it is attached to your property. Easements in gross, however, can be challenged once you own the property.

Respecting an easement

A legal easement must be adhered to, otherwise you could be exposed to a lawsuit.

If, for example, your neighbor is unable to access the beach because you have blocked their path, and you are preventing them from doing this, they may sue. If the easement says that they are only allowed to use your driveway in order to reach the beach, and they walk all over your property anyway, you can take them to court.

Understand the rights of each party to ensure that you are adhering to an easement, and the other party does the same. Consult a real-estate lawyer if you want to know more or have any questions.

Removing an easement

It is possible to challenge an easement, but the process can be lengthy and may require going to court. If the easement holder has agreed to terminate it or it has an expiration, that is the easiest way to get rid of it. You may find yourself in court over a complicated dispute, which can be emotionally charged if the neighbors are involved. To learn more about challenging easements, we recommend speaking with a real-estate lawyer.

Should you buy property with an easement?

The easement agreement, as well as your own personal preferences, will ultimately determine whether you buy a property that has an easement. You have to decide whether you are willing to live with an easement that is attached to the land and will remain there until it’s challenged.

You may not need to worry about an easement if it is not a protected or recurring need. For example, a utility company could access its assets.

It’s always best to consult a real estate attorney to find out how an easement will affect your property rights, particularly since it can have a significant impact on your ability to negotiate and resell the property.

FAQs on property easements

We can help with easements and property disputes. You can learn more about easements by checking out the following information.

Does an easement affect the ownership of my property?

The easement does not affect your ownership nor does it give anyone the right to claim your property. It does, however, allow certain parties to access your property in order to fulfill a specified purpose.

How will an easement affect my property value

Easements do not directly affect the value of your property and will neither increase nor decrease it. An easement can affect your ability to sell a property, if it is attached to the property and has strict rules which may discourage buyers or lead to lower offers. Items related to an easement can also affect the value of your property, such as newly installed utility equipment, or a walkway that damages landscaping.

What can I find out about easements?

The laws governing easements can vary depending on where you live, so it is best to contact your local county clerk or real-estate attorney for more information.

The bottom line

An easement is a legal right that allows someone to use another’s property. Each type of easement works differently. Understanding easements will help you to understand your rights and responsibilities. Research is important before you put any money down. Easements could affect the value of your property.

If you need to know if your property or one you’re buying has an easement, contact us for help with our title services.