What is an easement?
You have certain expectations as a new homeowner. Chief among them: that the property is yours and yours alone to use. But that’s not always the case. If you know what an easement is, you might wish that you didn't. There are 6 main types of easements, each of which grants property access to someone who has no ownership interest in your home.
If it sounds like they can create a lot of headaches for new homeowners, you're right. When buying a house, be sure to scrutinize any easements on the books and decide how they might impact your day-to-day life in your new home. You can save yourself a lot of grief by reading up on these legal agreements beforehand and knowing what you’re getting into when you purchase property with easements.
What is an easement in real estate?
An easement is a legal instrument that grants property access to people or organizations who otherwise hold no ownership interest in your home. That may include your neighbors, utility companies or government agencies, among other third parties. The most common example of an easement involves homes that don’t directly connect with public roads. If the only way for your neighbor to get to and from his home is by using a private road on your property or even your own driveway, then he may request an easement giving him access to your land.
Easements often — although not always — involve two primary parties, the dominant estates and servient estates (also known as the dominant tenements and servient tenements):
- Dominant estate: the non-owner who gains access to the land
- Servient estate: the property owner who must allow access to the land
It’s important to note that easements like the one described above are created for specific purposes — in this case traveling from one’s home to public roadways. They do not allow for unrestricted use or access to the property. If that same neighbor decides to leave his car parked on your private road, then he would likely be infringing on your rights as the property owner.
What are the 6 types of easements?
You may come across a few different types of easements during your search for a new house. Each one may vary in scope and purpose, so it’s good to know what the implications are beforehand.
- Utility easement
- Private easement
- Easement by necessity
- Easement appurtenant
- Easement by prescription
- Easement in gross
1. Utility easement
Utility easements are one of the 3 most common types of easements. This essentially states that utility companies can come onto your property to access or change any infrastructure that sits on it — think water pipes, telecom cabling, electrical grid infrastructure, etc. Whether you realize it or not, there’s a good chance your deed already contains some type of utility easement.
Unlike a private easement, you don’t really have much say in utility easements. It’s tough to make a good-faith argument why phone companies shouldn’t be allowed to repair or upgrade any telecom infrastructure on your property, after all. The good news is, though, that utility easements by and large don’t impact the day-to-day usage of private property. You should still be able to plant trees, put up a fence or build a tool shed, just as long as it doesn’t impede access to the utility. That being said, utility easements will take precedence over more intensive home improvement jobs, like installing an in-ground pool, for instance. Be sure to ask your real estate agent what any easements on your new home might mean for future DIY projects.
2. Private easement
Private easements are created — or even sold — by the property owner to another party, usually a neighbor. You may use a private easement to give your neighbor access to your driveway, run sewage runoff pipes through your property or draw water from a well on your land.
As property owner, you can decide which, if any, private easements you want to place on your land. You’re well within your rights to deny any easement requests your neighbors may make. Something to keep in mind as a prospective first-time homebuyer is that you can’t always cancel existing easement agreements the previous owner made. You may be required to honor those private easements, even though you didn’t create them yourself.
3. Easement by necessity
In some situations, courts may deem it essential that third parties access your land. The best example is the first one we discussed, giving your neighbor the right to use your private road because his property doesn’t touch any publicly accessible streets. Because your neighbor has no other option but to drive on your road to get in and out of his own home, you can’t legally deny him that access.
The one caveat here is that these kinds of easements only last as long as the conditions that make them necessary in the first place. So, if the government laid down a new roadway that connected with your neighbor’s property, he would no longer be able to use your property for that purpose. It doesn’t matter if the new route is inconvenient — once it’s available for use, the easement by necessity is void.
4. Easement appurtenant
An easement appurtenant — or easement by appurtenant — functions in a somewhat similar way to private easements and easements by necessity. That is, they permit specific individuals to use land adjoining their own property. If you bought a beach house where the only path to a public beach ran through your property, for instance, an easement appurtenant may dictate that you permit your next-door neighbors to use that walkway.
By that definition alone, there’s a lot of overlap with those other easement types. What sets easements by appurtenant apart, especially compared with private easements, is that they run with the land. In other words, they attach themselves to the property regardless of who owns it. When you buy a house with an easement appurtenant, you must adhere to its terms no matter what.
Your title insurance provider will research any easements impacting your land, checking that they are valid and looking to see if any conditions have changed that would void them. So, don’t worry too much about getting stuck with easements made in bad faith. Your title insurance has you covered.
5. Easement by prescription
What is a prescriptive easement? This type of easement comes into effect when one party has used the other’s property for a particular purpose over an extended period of time — with or without permission. You may think you’re just being a nice guy by not saying anything when your neighbor marches through your yard to get to an adjoining forest preserve, beach or public road. If given enough time, though, an easement by prescription could give them the legal right to continue moving across your property.
We’re not talking about months here, though. It takes years — potentially decades, even — for prescriptive easements to come into play. The specific time frame varies by state, so check your local laws to know when it’s time to bring the hammer down on trespassing neighbors.
6. Easement in gross
The biggest difference with an easement in gross compared with other types of easements is that there is no dominant estate involved. Whereas some of the easements discussed offer clear benefits to another property owner — such as giving your neighbors access to private roads — that’s not the case here. Typically, an easement in gross will come into play when a utility company wants to run power lines through private property or, less commonly, when a business wants to put up a billboard on your land.
Unlike an easement appurtenant, an easement in gross doesn’t run with the land. So, if you buy a house with one in place, you can decide to remove it.
What is an easement vs. what is an encroachment
Homebuyers often mistake easements for encroachments and vice versa. The two legal concepts couldn’t be more different, so let’s clear things up right now:
- An easement gives third parties the right to access someone else’s property.
- An encroachment occurs when someone uses that property without the homeowner’s permission.
Or, put another way:
- Easement = legal
- Encroachment = illegal
Examples of an encroachment may include your neighbor putting in a fence that sits on your property, building a tool shed that straddles your shared property line or using your yard as a shortcut to get to other land. If you don’t dispute instances of encroachment, your neighbor could later claim an easement of prescription after enough time has passed. So, while it may create friction in the short term, it’s always a good idea to push back when someone encroaches on your property.
If you are part of a homeowner’s association (HOA), fences, overhanging decks and sheds could all violate your by-laws. In those cases, you may be able to let your HOA deal with the situation rather than pursue a legal recourse yourself.
Should you buy a home with an easement?
Some easements are non-events — like utility easements, for example. They are unlikely to impact your life in any meaningful way. Other types of easements may be more intrusive and disruptive, especially if you don’t like the idea of other people having access to your property.
It really comes down to both the nature of the easement itself as well as what you’re comfortable with as a homeowner. In either case, it’s always good to review the specific terms of any easement affecting property you’re considering purchasing. Any easements will come up during a routine title search, so you’ll have time to think it over. The last thing you want is to realize after it’s too late that a particular easement is intolerable.
An easement gives another party — it could be a person, organization, business or government agency — permission to use or access your land for a specific purpose. Different types of easements vary in their scope and function, so take the time to understand what they’ll mean for you as a new homeowner.
Still not sure what your responsibilities are under a particular easement? Talk to a real estate attorney to go over your specific circumstances and figure out when other parties are allowed to use your property, what accommodations you have to make and what recourse you may have to end those easements. Remember, in many cases, easements are not disruptive for new homeowners, so don’t feel discouraged if the home you’re considering buying has one.
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