The Basics

Almost every property has easements – legal rights that others have to use parts of a real estate owner’s property. Despite their prevalence, easements are often misunderstood. And in some instances, people are not even aware that easements exist. As a property owner or prospective real estate buyer, you benefit from a basic understanding of easements. That understanding helps you avoid problems that can arise with easements, and it helps you figure out what questions to ask a real estate attorney or title expert about easements and their possible impact on property and you. The following is intended as a brief and general overview to help you start building your knowledge in this area:

What is an easement?

An easement is defined as a right that one party has to use real estate that is owned by someone else. The rights of the easement holder regarding usage of the property are specific and typically limited. Property ownership or possession is not impacted by an easement. The property owner gives up only defined rights on that portion of the property that is used for purposes of the easement. Common easements are those that are given to public utilities such gas or telephone companies to run lines under private property. Easements can also be given to individuals. For instance, a neighbor may grant an adjacent neighbor an easement to use a common driveway to access their property.

When an easement benefits another property owner, such as the shared driveway mentioned earlier, it is called an appurtenant easement. Appurtenant means incidental to or accompanies the property. When property ownership is not required to benefit from use, you have an easement in gross. This type of easement is attached to the holder who can be a person or a legal entity like a business or governmental body. For example, a person may have an easement to fish in a private lake or to use a boat ramp on private land. The easement benefits and follows that person regardless of whether he/she owns property. Utility easements such as water and sewer are examples of easements in gross that benefit entities.

How are easements created?

There are a number of ways in which easements can be created. These methods include express grant, implied, necessity, and prescription.

Usually, easements are expressly granted with the property owner’s permission. That permission is most commonly granted in writing and included in a document such as a property deed or other recorded agreement, or incorporated by reference to another document such as a subdivision plan. An implied easement is based on circumstances. It can arise where there is an implied intent by all parties for the creation of an easement. An easement by necessity is allowed by law for the full enjoyment of property. An easement to provide access over adjacent property if crossing that property is absolutely necessary to reach a landlocked parcel would be one granted by necessity. Easements by prescription, also called prescriptive easements, can be secured by continued use without the owner’s permission for a period of time required by law to establish the easement. An example would be where someone uses your private road for a number of years. You object, but never do anything that would physically stop the person from using your property in this manner, like putting up a locked gate. That person might be able to secure a prescriptive easement if the legal requirements are met.

What are some of the effects of easements?

Depending on your perspective, an easement is considered a benefit or a burden. The easement holder benefits from the rights granted. The burden is the obligation that is imposed on the property that is subject to the easement. What are some of the ways a property may be “burdened” by an easement? Property value can be potentially affected as well as property usage by the person granting the easement. As an illustration, if a parcel of property has several easements, the owner’s choices of sites for adding improvements like fences and buildings can be limited, thus possibly reducing the property appeal to some. Or, an easement for what could be considered an unsightly use, like high voltage power lines, may adversely impact property value.

How an owner’s use is affected will depend on the conditions and restrictions of the easement agreement. As a general rule, the owner granting the easement can make any use of that property as long as it does not unduly interfere with the rights granted to the easement holder. What can be considered undue interference will vary from situation to situation and can sometimes require a legal opinion to settle the issue. Typically though the owner granting the easement cannot build permanent structures within an easement area or otherwise hinder access to that area.

The best way to clearly understand easements is to talk with an experienced real estate attorney. Whether you are a potential buyer or an owner who is unsure if easements affect your property, an attorney can help you confirm the presence of easements as well as better understand their scope and implications.