You’ve found the perfect home on the perfect piece of property and can’t wait to have it all to yourself. Not so fast. Check for easements, among other things, when buying a home. And if there are any, you may have to share some of your property in some form. Easements are far more prevalent than you may think. If you’re thinking about buying a house, it’s a good idea to understand what an easement is and how it can affect your real estate property rights. Here we’ll discuss the different types of easement in real estate and see how to remove them from your property.
What Is Easement in Real Estate?
The most basic definition of an easement is that it grants a person or entity the right to access real estate property owned by someone else for a limited and particular purpose. Easements can have a variety of effects on property owners.
If an individual or company owns an easement on your property, that party has the right to access your property under the terms of the easement. Local utility firms, for example, generally possess easements if they need to access power lines or cables on your property.
On the other hand, if you have an easement, you have the right to access property that you do not legally own. A good illustration of this would be if you needed to cross someone else’s property to get to your house.
Easements appear to be an issue at first appearance, but they are actually highly useful in most cases. It’s simple to see how having access to your property could benefit you or your utility company. Sometimes easements are created for the benefit of the entire neighborhood.
However, it is always a good idea to conduct research when selling or purchasing a home. This material will help you understand the many forms of easements and what they mean for your property.
Types of Easement In Real Estate
There are several distinct types of easement, and each one can mean something different for your real estate property. Here’s a rundown of the four most frequent types of easements in real estate.
#1. Utility Easements
A utility easement is created by state or local law. It grants utility staff access to infrastructure located on private property. Utility easements are sometimes classified as affirmative easements since they grant the utility company legal access to your property, but only for a defined purpose. It’s common to uncover previous utility easements on the property when buying a new home.
While this may appear to be a difficult scenario, utility easements are advantageous to the majority of homeowners. If you want your home to have running water, power, cable, and sewer systems, you’ll need a utility firm to administer these services.
When there is a problem, your utility company will need to enter your cables or sewer system to make repairs. This form of easement does not give utility companies free rein on your property. They may be able to install new equipment, though, if it is for the benefit of the community. This is lawful regardless of whether you agree with their decision to make adjustments.
Some utility easements may even restrict what you can do with your property. For example, you may be prohibited from planting trees or installing any equipment that could interfere with local power lines.
#2. Private Easements
Private easements are property rights that can be created and sold or granted to another party by the property owner. Assume your neighbor wants to install solar panels on your property. You have the option of either granting access or refusing to sell a private easement.
Private easements become complicated when they have the potential to influence future homeowners. For example, if you offer your neighbor a private easement, it may affect anyone to whom you sell the home in the future. That is why, before purchasing a home, it is usually a good idea to inquire about any private easements on the property.
Private easements may not be a problem. However, depending on the restrictions, they may limit what you may do with your property. Private easements should be indicated on the title.
#3. Easements By Necessity
Easements are made when another person needs to access your property. These are sometimes referred to as access easements, and they are developed as a result of the government’s long-standing interest in making the land profitable.
As an example, suppose you live in a remote location and your neighbor is landlocked and can only reach the road by crossing your property. In this case, an easement would be necessary, and your neighbor would have the right of way.
You do not have the authority to prevent this form of easement since it would impose an undue burden on your neighbor. You’d jeopardize your neighbor’s right to use the main road.
#4. Prescriptive Easements
A prescriptive easement is a property right provided to someone who does not own the underlying property. The easement is created because the non-owner had previously used the property in a hostile, open, and notorious manner over a period of time determined by the laws of the property’s state.
Assume your neighbor begins parking in your driveway without your permission. You don’t stop them, and they keep doing it year after year. As unjust as it may appear, somebody can establish a right to access your property by illegally entering it. Because the court may interpret your refusal to stop them as a capitulation on your part.
If you believe someone is repeatedly trespassing on your property, you must act swiftly. Failure to act could result in the court granting your neighbor a prescriptive easement to access a piece of your property.
How to Determine If a Property Has an Easement
You should find out if a property has any easements before buying or improving it. If you utilize a portion of an easement in a way that interferes with the easement holder’s usage, you may incur financial and emotional losses if you have to demolish the landscaping, trees, fence, shed, addition, or other improvements you built in that area. A group of Houston residents found themselves in this scenario after acting on an implied easement with a power utility.
Here are several resources to look for easements on a property:
- County land records office
- City Hall
- Utility companies
- Property examination
- Title search
Title insurance can protect you from unreported easements that the title firm did not discover before issuing a title policy.
How to Remove an Easement on Your Property
First, determine whether the easement contains a termination date or is predicated on a condition that no longer exists. It’s conceivable that the easement you’re attempting to remove is already ineffective. Furthermore, if an easement holder ceases to use the easement for an extended period of time, they may be judged to have abandoned it.
If the easement is still valid, you can request a release of the easement to ask the dominant estate to waive their rights to access your property. You may need to submit a property survey and pay a fee to get the easement removed. To properly terminate the easement and make it a public record, the easement holder will need to file a quitclaim deed, which is a sort of legal instrument.
Property Easement Rules
Property easements can grant you or someone else the legal right to utilize a certain piece of land. They can either benefit you as a homeowner or require you to bear the burden of people using your property. Here are some pointers to keep in mind if you run across an easement during your house buying process.
#1. Purchasing A Property Easement
You will read disclosures before purchasing a home. These give a buyer more information, such as anything that could reduce the value or enjoyment of the home. If the seller is aware of any easements on the property, they are legally required to mention them in the disclosures. That’s one technique to find out if the house has easements. Another option is to go to the local assessor’s office or the county clerk’s office at the county courthouse. They are often stated on the property deed.
Don’t be concerned if the house has an easement. While it may be an irritation, it may also benefit you as the homeowner. It could also be an absolutely neutral experience. When purchasing a home with a property easement, learn about the purpose of the easement and how it may affect your homeownership experience. For example, if the easement is for a utility provider to lay underground wires on your property, you might not be able to build the in-ground pool you wanted.
Of fact, it may not even 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 gross easement, it may not be transferred with the sale of the home.
Before you put any money down on a house, you should check for property easements. A title search will normally notify you of any easements, but you can also check county land records or property surveys for extra information. If you have title insurance, your insurer may cover any concerns involving easements.
#2. Abiding By An Easement
An easement is legally binding and must be followed. If it isn’t, you could face a lawsuit, whether you own dominant or servient property. For example, if the only way your neighbor can go to the public beach is by crossing your property and you block them from doing so, they may sue you. However, if the easement stipulates that they can only use your driveway to get to the beach and they start walking all over your property, you could sue them.
To properly abide by an easement and guarantee the other party is doing the same, make sure you understand each party’s rights. Consult a real estate attorney if you have any queries or want to learn more.
#3. Taking on an Easement
An easement can be disputed, but it is a lengthy procedure that may require going to court. If the easement holder decides to terminate the easement or if it has an expiration date, the process may be simplified. Otherwise, you may end up in court, in a lengthy battle that is sometimes fraught with emotion if it involves neighbors. To learn more about challenging an easement, we recommend contacting a real estate lawyer.
How to Avoid Legal Disputes Over Easements
As a property owner, you may not interfere with the purpose of a legal easement. If, for example, the electric company has strung wires over its right of way, you cannot cut them down or block their course. So, if you tamper with an easement, you could end up owing the easement owner money and facing a court order to halt.
If you are in a dispute over an easement or believe someone is illegally trespassing on your property—for example, you are a new homeowner who has just discovered that your neighbor is using what you believe is a private drive for access to her own property—consult with an experienced local real estate attorney. The regulations governing easements differ from state to state, and you will most likely require tailored assistance for your specific circumstance.
It is especially crucial to contact an experienced real estate attorney if there is nothing in writing (for example, in a deed or title paperwork) about the easement. The legal theories of unwritten easements generated by people’s conduct and particular circumstances can be difficult, and you’ll need assistance from someone knowledgeable about your state’s real estate law and up to date on relevant court judgments.
What Exactly Is a Property’s Perimeter Easement?
An easement is a real estate ownership right (sometimes known as an “encumbrance on the title”) provided to a person or organization to use another person’s land for a certain, usually indefinite purpose. It is not a pure right of possession or a license to use the land.
Is an Easement Considered a Property Right?
In most jurisdictions, an easement is a sort of incorporeal property and a property right in and of itself under common law. Real covenants and equitable servitudes are comparable to easements.
Who Has the Authority to Enforce an Easement?
An easement can be made by a single landowner for any estate or interest. By taking unilateral action, the owner of a servient tenement may impose an easement on his land.
Can a Deed Be Used to Grant an Easement?
There are several ways to create easements, but the most popular one is by deed. This sometimes occurs when land portions are sold and only one plot of land may be accessed by crossing through another.
Which Safeguards Apply to Easements?
When created, a legal easement over unregistered land has the force of law and is binding on all parties. A class D(iii) land charge must be registered against the entire name of the estate owner in order to protect an equitable easement over unregistered land.
Easement In Real Estate FAQs
How do I remove an easement from my property?
An easement can be terminated in eight ways: abandonment, merger, termination of necessity, demolition, recording act, condemnation, adverse possession, and release.
How do I remove an easement from my property?
An easement can be terminated in eight ways: abandonment, merger, termination of necessity, demolition, recording act, condemnation, adverse possession, and release.
What is the most common type of easements?
The most popular are affirmative easements. They grant preferential access to territory controlled by others. Negative easements are more limited. They restrict how the land can be used.
