What Is an Easement and How Does It Function?

Understanding Easements in Real Estate

An easement is a legal right that allows someone other than the property owner to use part of their land for a specific purpose. This could include things like a shared driveway, utility access, or even a path to a public road. These rights are typically documented in property records and remain in place even if the property changes hands. Easements can be created voluntarily through agreements between parties, required by law, or established through long-term, documented use.

Easements are often discovered during a title search, which is a crucial step in the homebuying process. This search confirms the seller's legal ownership of the property and identifies any claims or restrictions, such as easements. While an easement may seem like a red flag, it doesn’t necessarily mean you should walk away from the sale. Instead, it’s important to understand what the easement entails and how it might affect your use of the property.

What is an Easement?

At its core, an easement grants another person, entity, or business the legal right to access or use someone else’s property. The owner still retains full ownership and rights to the land, but these rights are limited by the easement. For example, a private easement might be created between neighbors, while a public one could involve a municipal agency or utility company. Utility companies often have easements to access power lines, water services, or sewer systems. Easements can be above ground, below ground, or both, and a single property may have multiple easements.

Common Uses of Easements

Easements are not uncommon in real estate and serve various practical purposes. They allow utility companies to access infrastructure, enable neighbors to share driveways in densely populated areas, and provide access to beaches or scenic views in coastal regions. In some cases, easements also allow for vehicular access to and from a public road. These arrangements help ensure that properties remain functional and accessible without requiring major modifications.

Types of Easements

There are several common types of easements, each with unique characteristics:

• Easement appurtenant: This type of easement is tied to the property itself and transfers with the land when ownership changes. It is permanent and remains in effect regardless of who owns the property.

• Easement in gross: Unlike an appurtenant easement, this type belongs to the individual or entity it is granted to. Examples include utility company access to power lines or a neighbor’s right to fish in a pond.

• Easement by prescription: This occurs when an individual uses a property openly and continuously without permission for a certain period, eventually gaining legal rights through the concept of "adverse possession."

Buying a Property with an Easement

If an easement is found during a title search, it doesn’t automatically disqualify the property. However, it can impose restrictions on how the property is used or what improvements can be made. Before purchasing, it’s essential to fully understand the terms of the easement and consult with a real estate attorney. Here are some factors to consider:

Legal Considerations

The main issue usually arises if the easement was not properly created or if it affects access to the home. Shared roads, for instance, can raise questions about maintenance responsibilities. Some lenders may require a recorded easement or a clear agreement on road maintenance. If not handled correctly, this could lead to loan denial.

Enjoyment of Property

Easements can also impact how much you enjoy your property or your relationships with neighbors. For example, a solar easement might prevent you from building structures that block a neighbor’s sunlight, while a scenic easement could limit changes that might obstruct a view.

Home Improvements

If you plan to renovate, check for existing easements that might restrict certain changes. A historic-preservation easement, for example, could limit what modifications you can make to an older home. Additionally, homeowners associations (HOAs) may have rules that govern what you can do on your property, including adding a patio or installing a fence.

How to Create an Easement

There are three primary ways to create an easement:

• Express easement: This is the most common method, where two parties agree on the terms and sign a legal document outlining the specifics. It’s advisable to work with an attorney to ensure the document is legally sound.

• Implied easement: This occurs when usage is based on common sense and necessity, though it’s not formally written down. While it may be recognized in court, an express easement is generally more secure.

• Easement by necessity: This is created when one party has no choice but to use another’s property. For example, if a home is only accessible via a neighbor’s driveway, an easement may be necessary.

Removing an Existing Easement

Ending an easement that is already in place can be challenging. Some easements, especially those with a set expiration date, may be easier to remove. An easement in gross, which is granted to an individual, cannot be voided until that person passes away or agrees to terminate it. Appurtenant and prescriptive easements can be ended through a formal written agreement, but the other party may not always be willing to cooperate.

Conclusion

Easements are a common aspect of real estate that can serve important functions. While they shouldn’t automatically be considered deal-breakers, they can be complex and may require careful review. Before purchasing a property, it’s wise to have any existing easements reviewed by a real estate attorney to ensure you fully understand your rights and responsibilities.