Whether you own land or a commercial/residential property, an easement likely exists on the property because of the presence of external utility services that include water, gas, or electricity. If there’s a road or driveway that crosses your land to reach a field or home that’s situated behind your property, this could be considered an easement even if it hasn’t been recorded.
Easements are highly common and are part of the streets you drive on, the hiking trails you use, and the parks you spend time at. The purpose of an easement is to accommodate situations where neighbors and communities might otherwise have issues without an easement in place.
If you’re about to purchase a property, you should know if there are any easements attached to it. Current property owners should identify what easements are on their property to make sure they don’t make an addition that’s in violation of the easement.
In the event that a piece of land is landlocked, an easement is likely the only way for the property to be accessible without directly trespassing on someone else’s land. By creating an easement with your neighbors, you’ll have immediate access to a lot that would otherwise be unusable. This guide acts as an in-depth overview of easements and how property owners can manage them.
An easement is a type of legal right that people or entities have to trespass on a piece of land that’s owned by another individual. While this portion of the land is still available to the owner, they don’t have complete control over how it’s used. An easement can be anything from a cable line that’s positioned on your property to a shared driveway. Nearly every property contains at least one easement, the most common of which are utility easements.
While easements can have a limited duration, they are usually indefinite. If an easement benefits an adjoining property, it’s considered to be an appurtenant easement. When an easement doesn’t benefit a piece of land, it’s referred to as an easement in gross. An example of an easement in gross is a gas transmission pipeline.
Easements can be recorded in public real estate records but may also exist without being recorded. Since easements don’t need to be recorded, it’s highly recommended that you thoroughly inspect your land to identify if there are any potential easements on it. A common legal issue with easements involves whether the owner knew about the existence of it.
Easement owners are legally required to maintain any easements on their property. They also have a right of access across from the easement. It’s possible for easement owners to remove fences and trees from the portion of the property they have access to. While these actions are usually legal, check the easement documentation to determine if these changes are allowed. Some examples of appurtenant easements that can be found on a property include:
- Completing business on a piece of land
- Performing certain sports on land
- Taking wood and water from land
- Having access to a right of way
- Flooding land
Use Cases for Easements
The most common easement is a right of way easement, which provides organizations or people with the ability to access a property and use it for a specific purpose. This type of easement establishes that the entity in question has the freedom to use a portion of someone else’s property without receiving ownership of that property.
Along with the right of way easement, there are several additional types you should be aware of. It’s also possible for easements to fall into multiple categories depending on the cause of the easement as well as the terms that it was created with. As mentioned previously, an appurtenant easement is one where two properties are effectively linked together with some type of easement.
The property that benefits from the easement is considered the dominant estate. If a path starts on one property but leads to another, the property that the path ends on will be the dominant estate. As for the property that provides the easement, it’s considered the servient estate. This form of easement might apply to everything from allowing a neighbor to create a shortcut through your property to providing direct access to your property.
The second type of easement is an easement in gross. These easements are tied to the individual who is set to use the easement at a specific time. For instance, utility workers are given an easement in gross that allows them to perform maintenance and check the readings on meters.
Private easements occur when two property owners make an agreement that allows one owner to use the other property for a very specific reason. For instance, this type of easement could be created in the event that the neighbor needs to place pipe under the other property to get to their home. This type of easement can be sold or freely given.
These easements are different from public ones because an agreement must be made between the two property owners before it’s put in place. Public easements are automatically performed by the government and don’t require an agreement to be made beforehand.
Express easements occur when the easement agreement is written down in a deed or will. Even though these agreements might not be made in an official manner, they are still put in the record since they are displayed in legal documents.
It’s also possible for implied easements to exist, which are ones that haven’t been written down but have existed for many years. For instance, let’s say that your property exists as the sole path that children have when they want to reach the bus stop. In this scenario, an implied easement likely exists that allows the children to cross the property. Keep in mind, however, that implied easements won’t have the total force of law until a judge rules on them, which may never occur if the easement is never challenged.
Prescriptive easements occur when an individual or entity uses your property for a reason that you didn’t give permission for. The adverse possession principle applies in this situation.
The individual who makes the claim must have possession of the property. They need to have used the easement for their purposes and retain full control over the property. If these criteria are met, a prescriptive easement could be made.
Even though a prescriptive easement sounds like it could be a serious issue that would create animus between two property owners, a prescriptive easement can occur with something as basic as a garden box being partially on the property lines or a fence encroaching on a neighboring yard.
Buying a House with an Easement
Since right of way easements occur on a regular basis, they usually don’t create issues when you’re trying to buy a home with an easement. There’s also very little reason for buyers to avoid properties with easements. As mentioned previously, nearly all properties come with at least one easement, which makes it difficult for buyers to exclude these properties in their search criteria.
However, any buyer should know the exact details of an easement before making an offer on a property they’re interested in. They should also have a good idea of what rights their neighbors might have to the property they’re about to purchase. These details allow the buyer to make an informed decision.
Since these easements are oftentimes an inconvenience, buyers could use them when negotiating with the seller about possible concessions. The buyer might ask for the seller to pay for some of the closing costs if one or more easements are present on the property.
It’s possible to negotiate for the removal of an easement. In many cases, the best option is to speak directly with the holder of the easement to ask if it can be terminated. It’s possible that you would need to pay to have the easement removed. In the event that a landowner isn’t willing to negotiate with you, one option you might consider is to make a challenge to the easement in court. The main issue with this approach is that court proceedings can be costly and may take up a considerable amount of your time.
While buyers would love to purchase properties that don’t contain any easements, it’s almost impossible to find one. Even though some easements are frustrating to deal with, most of them are straightforward and shouldn’t make it more difficult for the owner to get the most out of their property.
Whether you’re purchasing a property with an easement or already own one that contains an easement, you have the ability to negotiate with the easement holder. If negotiations go well, the easement could be dropped altogether.
Jason Somers, President & Founder of Crest Real Estate
With over 15 years of professional experience in the Los Angeles luxury real estate market, Jason Somers has the background, judgement and track record to provide an unparalleled level of real estate services. His widespread knowledge helps clients identify and acquire income producing properties and value-ad development opportunities.