EASEMENT: Everything You Should Know

easement
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One of the things to consider when buying a property is if there is an easement on that property. This determines whether another person will have access to the property after you have paid for it. The different types of easements include easement by prescription, utility easements, appurtenant easements, etc. We’ll explain these in detail in this chapter.

What Is An Easement?

An easement refers to the legal right to use another person’s real property for a specific purpose and time period. Easements give a person the legal right to pass through the land of another person. This is as long as the usage is consistent with the easement restrictions. Although easements grant a possessory interest in the land for a specific purpose, the title to the property remains with the landowner.

Easements can be granted to anyone, including neighbors, government agencies, and private individuals. An easement would be created if a property owner allows their neighbor to use their private road or path for navigation purposes. Public utilities, power lines, and cable TV are examples of common easements. Easements are governed by real property law because they are associated with real property.

How Do I Determine Whether My Property Has an Easement?

As previously stated, easements can be granted to a wide range of individuals or organizations. For example, if you want to determine the location of sewer lines or concealed electricity lines, the simplest way to do so is to contact your local utility provider. However, contacting the County land records office or County Clerk’s office is the best approach to find out if your property has an easement.

The majority of easements are registered on or attached to the deed to the property you own. Another location to look for easements is at the city hall. Any easement that is recorded on your property’s title will include a reference number. A county clerk can then assist you in locating the original easement document to create a copy using that reference number.

Different Types of Easements

There are various types of easements, each with its own set of unique circumstances. If you have easements on your property, you should understand the sort of easement so you know your rights. 

#1. Easement By Prescription 

An easement by prescription, or a prescriptive easement, is obtained as a result of adverse possession. That is, someone other than the original owner of the property gets usage or ownership rights to that property.

A prescription easement can be established if a person has used the land or property publicly and continuously for a specific period of time without the authorization of the owner. If you frequently utilize a section of someone else’s property, you may have a prescription easement.

A prescription easement is recognized by courts. This is because the individual claiming the easement used the property for a long time and relied on being able to use the land. For example, Sammy purchased property that did not have access to a public road. However, he utilized his neighbor’s private gravel path to reach a public road for ten years. The owner of the other property might not request that he stop using the private road. In this case, a court may issue him a prescription easement.

#2. Easement By Necessity

This form of easement is usually established by legislation rather than by a specific pledge or agreement between neighbors. To obtain just results, the law requires easements to exist.

A parcel of land that is landlocked is an example of an easement by necessity. Landlocked land is land that can only be reached by crossing over other property. As a result, by necessity, the law provides an easement to enable the landlocked owner access to their own property via the other landowner’s property.

#3. Negative Easement

This imposes an obligation or a restriction on the property owner’s ability to use their own property in a way that would otherwise be legal. Negative easements are commonly referred to as restrictive covenants.

For example, suppose a new condo is being built and the owners of an old condo building do not want the new structure to obscure their view of the ocean. A negative easement could address this issue.

#4. Easement Appurtenant

An easement appurtenant is a property easement that is not related to a certain time period or property owner, but rather to the property itself. An easement appurtenant is commonly referred to as “running with the land”. This is because it continues to exist even if the owners change. In essence, the easement appurtenant is a property-beneficial easement.

A property that provides only access to a private beach shared by two neighbors is an example of an easement appurtenant. Because the appurtenant easement remains with the residence, the future owners must allow their neighbors access to the beach via their property if the house is sold. It’s critical to carefully research property disclosures and check for easements before making an offer on a house. As a result, you’ll be aware of all of your property rights as a new homeowner.

#5. Gross Easement

An easement in gross is associated with a specific person or entity rather than the property itself. It benefits the owner of the easement. Utility corporations frequently hold huge easements in order to build and maintain electricity lines on or near private property. The firms will typically have a utility easement to use the property to have access to these lines.

A more personal example of a gross easement might be one that allows a friend to hunt on your property or a neighbor to fish in your pond.

Gross easements are usually irrevocable and cannot be revoked until the easement holder dies or the house is sold. If the house is sold, the seller can either transmit the easement to the new owner or the new owner might refuse the easement. If the easement is from a public institution, you may 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. As a result, in the above situations, your friend cannot transfer the easement to another individual so that they can hunt on your property. Furthermore, the electric provider cannot transfer its easement to another company without the property owner’s permission. If a new person or public utility business seeks to use the servient property, a new easement must be filed.

#6. Utility Easement

A utility easement refers to a utility company’s right to access and manage a piece of another person’s land that is near utility facilities and structures (i.e. utility poles, transformers, overhead or underground electrical lines).

What May I Do On My Property if I Have a Utility Easement?

Anaheim Public Utilities demands that you keep utility easement areas free at all times to ensure the safety of yourself, your neighbors, and anybody who lives, works, or plays nearby. Anaheim Public Utilities can preserve and protect utility structures from damage by restricting activities in and around easement zones, guaranteeing safe and reliable energy to your community.

Do I Have to Make an Easement?

As previously stated, an easement by necessity is a legal easement that allows a person to have access to their property. If your land is required to be subject to an easement, you may not interfere with your neighbor’s use of the easement to access their residence. Furthermore, some utility corporations or towns are awarded easements that are recorded in plat records long before dwellings are erected on the land.

A utility easement is granted to the city or a utility company to use and access a person’s property in order to provide public utilities. Utility easements are attached to property documents and are transmitted to all future owners when the property is transferred or sold.

What Is the Purpose of Easements?

One of the rights of landowners is the ability to enter and exit their property. However, certain parcels of land are separated from public thoroughfares by other private properties. This is frequently the case when an easement is created.

Regulations for Property Easements

Property easements grant you or another person the legal right to utilize a certain piece of land. They can be advantageous to you as a homeowner or require you to bear the burden of others using your property. Here are some pointers to consider if you come across easements throughout your house-buying process.

#1. Purchasing A Home With Property Easements

You will look through disclosure documents before purchasing a home. These give a buyer additional information, such as anything that may have a negative impact on the value or enjoyment of the home. If the seller is aware of any easements on the property, they must include them in the disclosures. That’s one way to find out if the house has any easements. Another option is to go to the county courthouse and visit the local assessor’s or county clerk’s office. They are usually mentioned on the property deed.

Don’t worry if the house has a prescription easement, or any easement at all. While it may be inconvenient, it may benefit you as the homeowner. It could also be a completely neutral sensation. When purchasing a home with a property easement, discover what the easement is for and how it may affect your homeownership experience. For example, if the easement allows a utility company to lay underground wires on your property, you may not be able to build the in-ground pool you wanted.

Of course, it may not matter. If there is an easement appurtenant, it will remain with the property and you will have to deal with it. However, if it is a large easement, it may not transfer with the sale of the home.

Check for property easements once you’ve found a house you like and before you put any money down. A title search will normally alert you to potential easements, but you can also check county land records or property surveys for further information. If you have title insurance, your insurer may cover any concerns involving easements.

#2. Observing An Easement

Easements are legally binding documents that must be observed. If it isn’t, you could face a lawsuit, regardless of whether you own dominant or servient property. For example, if your neighbor’s sole route to get to the public beach is to cross your property and you block them from doing so, they may sue you. You could take them to court if the easement states that they can only use your driveway to get to the beach and they start walking all over your property.

Understand each party’s rights in order to properly abide by an easement and ensure the other party is doing the same. Consult a real estate lawyer if you have any queries or want to learn more.

#3. Defying An Easement

Easements can be disputed, but it’s a lengthy procedure that may end up in court. If the easement holder agrees to terminate the easement or if it has an expiration date, the process may be sped up. Otherwise, you may find yourself in court, involved in a lengthy battle that, if it involves neighbors, is generally fraught with emotion. To learn more about challenging easements, we recommend speaking with a real estate lawyer.

In Conclusion,

Knowing your rights and responsibilities as a homeowner includes understanding easements. Easements have the potential to reduce property value, so do your homework before putting money down.

Frequently Asked Questions

Can you fence around an easement?

You can fence around an easement. However, you should know that the utility company can take the fence down in order to use the easement.

Prescriptive easements, where rights have been used for more than 40 years, can also take effect as legal easements, albeit this is uncommon. If the servient land is registered, the legal easement must also be registered; otherwise, it is merely an equitable interest.

What is the most common type of easement?

The most common types of easements are affirmative easements

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