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An easement is an arrangement in which someone other than the owner of the property has the right to use the owner’s property in some form. In some cases, an easement is a legal arrangement established even before the property is acquired by its first owner. Other times, the arrangement has existed on a property owned by the same (or multiple) parties for many years.
Most easements are peaceful arrangements. The easement exists for the benefit of the non-owner of the property but presents no detriment to the actual owner of the property. But there are situations where easements are unknown or even hostile. That’s why it’s important to understand easements and what your rights may be if you own a property with an easement or plan to purchase property where an easement is known to exist.
An easement is created when a public organization or a private property owner requires the use of – or access through – a property you own. Even though the party benefiting from the easement doesn’t have an ownership stake in your property, they do have a legally recognized interest in it.
A common example of an easement by a public organization is a utility company that maintains supply lines through a property. This can include underground water and sewer pipes, TV and Internet cables, or electric power lines, which can be either aboveground or below.
An easement may also exist in favor of a homeowner’s association. Based on the size and location of your property, the HOA may have an easement for road access through parts of your property for the benefit of other property owners and residents in the neighborhood.
A private party easement may exist when the owner of an adjacent property has what is known as a landlocked lot. A landlocked lot refers to a piece of property without road frontage or private access to public streets. The owner may have been granted access to the street by a driveway running through your property. If so, the easement may be a permanent feature of both your property and the neighbor’s property.
The vast majority of easements are publicly recorded. That would certainly be true of any of the situations described above. But there may also be unrecorded easements that are legally enforceable.
For example, suppose one of your neighbors built a barn on the edge of their property and a small part of the structure sits on your lot. If the barn was built many years ago, and neither you nor the previous owner legally challenged the encroachment, the easement will likely be legal and binding.
There are property laws—although they vary by state—that enable this type of easement to become legal after a certain number of years have passed, typically between 10 and 20 years.Once that time has passed, the easement becomes legally binding. This type of easement is sometimes referred to as acquisition by adverse possession.
There are three main types of easements:
Appurtenant is a type of easement that is legally attached to the property. This means it’s a permanent part of the property ownership, no matter who owns the property. When the property is sold from one owner to another, the easement transfers with the title. An example of this type of easement is a utility easement that remains with the property because it provides a benefit to both the property owner and the surrounding community.
Easement in gross is when an easement has been granted to an organization or an adjacent property owner to use as a part of the property. It’s different from an appurtenant easement because the easement runs with the beneficiary and is not a permanent part of the ownership of the subject property. An example is allowing a neighbor to park vehicles on a portion of your property. The easement may exist for the benefit of that neighbor but will expire when they move or die.
Easement by prescription is when a neighbor or other party uses a property for their own benefit without formal permission from the property owner. Because state laws permit this, the easement becomes legal after a certain amount of time has passed. Since the beneficiary has used the property for so long without objection from the owner, the easement is considered to be legally enforceable, even though no written agreement exists establishing its validity.
The easiest type of easement to set up is called an express easement. With an express easement, both parties agree to an easement arrangement, and then seal the deal by creating and executing a legal document. That document will become attached to the title of the property and will continue for as long as the parties agree that it will be in force.
A more informal easement arrangement is an implied easement. It is similar to an express easement except there is no legal agreement formalizing the arrangement. Although this type of easement can work well for both parties, it will be easier for the property owner or a subsequent owner to challenge the easement at a later date.
A third arrangement is called an easement by necessity. Another party gains an easement on a property because the easement is essential to the integrity of the beneficiary party. An example of this type of arrangement is the owner of a landlocked lot being granted an easement to access the nearest public street through another owner’s property.
The only effective way to learn if a property is encumbered by an easement is to have a title search performed at the time you purchase a piece of property. Fortunately, a title search is standard procedure whenever property changes hands. It will be ordered by either the closing attorney or the title agent before closing. The cost of the title search is usually several hundred dollars, and it is paid by the property purchaser.
Title searches examine a property’s legal history as far back as records exist. If an easement exists and has been legally recorded, it should be revealed by the title search.
The limitation, however, is that an easement may exist that has not been legally recorded.
Some easements have a predetermined expiration date. For example, the previous owner may have granted your neighbor the right to park vehicles on a remote part of your property. But the agreement may be set to expire either when the current neighbor moves or dies. In other situations, an easement may be set to expire after a fixed number of years by mutual agreement.
Even without an expiration date, it may be possible to terminate an easement for compensation. For example, your neighbor may agree to stop parking vehicles on your property in exchange for financial remuneration.
If the easement involves a utility or a neighborhood association, removal may be more complicated. That’s because termination of the easement may require the user to reroute power lines or access roads at a substantial cost. It may still be possible to make this happen, but it will likely involve a long legal fight and may also include compensation to the other party.
In the vast majority of cases, an easement will not hurt your ownership of the property. For example, if the local water utility has supply lines running beneath your property, it should not affect your use and enjoyment of the property(or its market value). However, there will likely be limits on where you can build or dig on your property and how far.
If there is an electric company utility that involves above-ground power lines running across your property, this may impact the market value of the home. But if you are purchasing a property with such an easement, it’s likely the price you pay for the home will be reduced as a result.
If the easement involves road access through your property, this may not be an issue, especially if it’s confined to a remote corner of the lot. Your neighbor will have the needed access to their property without any impact on the quality of your ownership.
Alternatively, if the easement involves a shared driveway, this will affect the market value of your property in the future and may also be an inconvenience while you are living in the home. You’ll need to decide if you’re willing to live with that type of arrangement. In many urban neighborhoods, shared driveways are common.
It’s a good idea to consult with a real estate attorney about the implications of any easement situation.
The answer to that question depends on the terms contained within a written agreement establishing the easement. For example, if the utility company has lines running through (or underneath) your property, you may be prohibited from building any structures within a certain number of feet of the line.
It depends on the type of easement the property owner is attempting to block. Once an easement exists, getting it removed can be difficult if the other party doesn’t agree to, or is unwilling to accept, a reasonable settlement. You may need to pursue legal action to make it happen, which will require proving you are experiencing an unreasonable impairment as a result of the easement.
You’ll find yourself in a similar situation to an appurtenant easement. If you cannot come to a mutual agreement with the easement beneficiary, you may need to resort to legal action.
If the arrangement is an easement in gross (where the easement exists specifically for the benefit of the non-owner party), you will not be able to challenge the agreement until either the other party agrees, dies, or sells the property.
There are four other names associated with easements: access, passage, legal right, and means of access. Each refers to the ability of a non-owner of a property to receive some benefit as a result of limited access to or through the property.
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