What Are Easements And How Can They Affect My Property?

Imagine you’re close to closing on a new house, and an easement is discovered during the title search. You learn that the easement gives another party the right to access your soon-to-be property, and you have no say in the decision.

If you find yourself in this scenario, learn everything you can about the easement, including what it allows, doesn’t allow and what parts of the property the right applies to. You can use what you learn to help you decide whether you still want to buy the home.

Finding an easement is quite common, especially in suburban areas, so it’s an arrangement you’ll need to get familiar with. Let’s explore easements, the different types and how they can affect your property rights.

An easement is a legal term for a type of property right that allows another person, business or entity access to a specific part of your property.

Easements can affect property owners in a few ways. For example, an affirmative easement gives a party the right to cut through your yard to get to a school on the other side of the yard. In this case, you can’t block the path or their access to your property.

A negative easement prevents a property owner from developing in a way that blocks a neighbor’s views or access to sunlight, for instance. (We’ll discuss additional easements later on in the article.)

An easement grants an individual or entity the right to access your property within certain guidelines. For instance, local utility companies typically hold easements that let them access power lines or cables that cross over your property.

If you’re the easement holder, you can access a property you don’t legally own. A good example would be cutting through someone else’s property to get to your home.

In most cases, there’s no reason to walk away.

Easements may seem problematic at first glance, but they’re usually a practical solution in most situations. For example, neighboring homeowners or utility companies can benefit from gaining access to a property, which is understandable in many situations.

Sometimes, easements benefit an entire neighborhood, such as a safe path to school for neighborhood kids.

But it’s still a good idea to research any easements when selling or buying a house. To avoid any surprises, get a property title search completed before buying to see if the home has easements or liens.

Let’s look at different easements you may encounter and what each one could mean for your property.

There are many different types of easements, and each one can mean different things for your home. Here’s an overview of four common easements.

Utility Easements

When you purchase a new home, you’ll often find preexisting utility easements on the property. A utility easement follows state or local regulations and is arranged between a property owner and a utility company. It gives a utility company the right to access essential utilities and equipment on private property. Utility easements are sometimes referred to as affirmative easements because they grant a utility company legal access to a property for a specific use.

A utility company will likely need to access your property for repairs and to maintain or expand its infrastructure. The easement doesn’t grant utility companies free rein on your property. The work is allowed as long as a utility company’s actions follow the easement’s guidelines.

Some utility easements put limits on what a property owner can do with their property. For instance, an owner may not be allowed to plant trees or install equipment that interferes with local power lines.

Private Easements

Private easements are property rights a property owner can create, sell or give to another party and should be recorded on the property title. Let’s say your neighbor needs access to your land to install solar panels. You can either grant access or refuse to sell a private easement.

Private easements can get tricky because the right can affect future homeowners. If a homeowner grants their neighbor a private easement, it can affect the new property owner. That’s why it’s always a good idea to check for private easements on a property before buying a home.

These types of easements may not be a problem, but depending on the terms, they can limit what an owner can do with property.

Easements By Necessity

Easements by necessity, sometimes referred to as access easements, result from a government agency’s long-standing interest in making a plot of land productive.

Imagine you live in a rural area, and your neighbor is landlocked and can only access the public road by crossing your property. The government would automatically establish an easement by necessity to grant your neighbor the right of way.

You don’t have the right to stop an easement by necessity because it would unnecessarily burden your neighbor by negatively impacting their right to access the main road.

Prescriptive Easements

A prescriptive easement is a property right granted to an individual who doesn’t own the property they’re accessing. This easement is arranged because the non-property owner has been using the property without a formal agreement for a significant period as defined by state laws.

Suppose your neighbor starts parking in your driveway without your permission. You don’t stop them, and they continue to do it year after year. Allowing someone to access your property for years without permission may grant them the legal right to access it in the future. If you sue your neighbor, a court could see your failure to stop them as implied consent.

It’s essential to act fast when you learn someone’s repeatedly trespassing on your property. Failure to act could result in the court granting your neighbor a prescriptive easement to access a portion of your property.

There are three common ways to create an easement.

1. Express easement: Both parties enter into a written agreement that outlines an easement’s terms.
   
   
2.  Implied easement: Both parties agree to an easement based on specific conditions, but don’t legally record it.
   
   
3. Easement by necessity: A court or government entity creates an easement by necessity to allow landlocked neighbors access to a public road.

A property owner can block an easement depending on the easement they’re trying to block. If an owner tries to block a utility easement, they’ll likely lose that battle. Blocking an easement, such as a neighbor’s access to a sewer line, may also be out of your control. However, owners can try to block prescriptive and other types of easements and contest the portion of land a non-property owner wants access to.

With so many types of easements to know, it’s natural to search for guidance on the topic. Below are some common questions home buyers have about easements and ownership rights.

How will an easement affect my ownership of property?

An easement won't affect your ownership of a property. However, it grants other parties the right to use designated parts of your property and may limit what you can do on your land. For example, it may restrict where you can build a shed, install a pool or plant trees because those actions may block or interfere with an easement holder’s use.

How do I know if a property I’m interested in has an easement?

Order a title search to learn more about a home you want to buy, including whether there are any easements on the property.

However, not all easements get recorded, either because it’s in the process of being created or an easement was established and never recorded. Some properties may have implied easements, which only exist when there’s a need for one. You won’t find implied easements in a written agreement or a legal document.

Almost all homes have an easement, and most easements aren’t problematic. Easements typically run with the land, which means they don’t expire when property ownership changes. Consult with a real estate attorney if you’re concerned about an easement.

What’s an easement appurtenant?

An easement appurtenant is when a property owner benefits from a neighboring parcel of land. The parcel that benefits is the dominant tenement or dominant estate. The parcel of land with the easement is called the servient tenement or servient estate.

Imagine you own a vacation property with a path to a public beach, and the only way to access the beach is by crossing through your property. In this situation, an easement appurtenant is created to grant the public the right to cross your property to access the beach.

Your property is the servient tenement because it’s subject to the right granted by the easement. The beach is the dominant tenement because it benefits from the easement.

What’s the difference between a prescriptive easement and adverse possession?

A prescriptive easement and adverse possession share similarities but differ in critical ways. Both legal doctrines give a non-property owner the right to access your property by open and legally defined “notorious” use.

However, there are a few differences between the two.

Adverse possession is considered a negative easement and typically involves some form of trespassing over a lengthy period, usually 10 – 20 years in most states. However, a prescriptive easement grants a limited right, usually by necessity.

There are a few ways to determine whether an easement is a prescriptive or adverse possession. The first is to consider the intent, and the second is to consider the non-property owner’s actions.

With a prescriptive easement, the goal is to gain access to the property for a specific purpose, not to take ownership of the property. With adverse possession, the non-property owner’s actions demonstrate a clear intent to claim full ownership.

How can I prevent someone from acquiring a prescriptive easement to my property?

If you feel like someone is trying to obtain a prescriptive easement, it’s important to act quickly. Asserting your property rights before an easement is established will void the trespasser’s rights.

You can try to stop the trespassing and make it harder for someone to make a prescriptive easement claim by granting permission for the specific use or building a fence to prevent them from crossing property lines.

Buying a home with a property easement isn’t the end of the world – especially since they’re very common. Many easements can benefit the homeowner and the easement holder. But some easements can create issues and restrict certain property rights. To protect yourself and your investment, thoroughly research your prospective property to learn which easements are on the property.

Looking at a home with a property easement? Make sure you start the approval process so you can make a compelling offer to the seller. You can also call us at (833) 326-6018.