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Encounter an Easement? Here’s What That Means

October 27 2018
by Leisl Bailey

Couple walking dog on sidewalk.

Many people misunderstand what easements are and how they work. Because of this, easements can be at the center of many legal battles and bitter debates.

In this article, we will break down everything you need to know about easements so you can avoid this strife with ease.

First things first:

What is an easement?

We will start with a key term to know: servient estate. This is a piece of land that is subject to easements.

An easement is essentially the legal right for someone else to use a property for a specific purpose. The “someone else” here would be someone who is not the current property owner.

However, easements are not “possessory.” This means that the easement owner is not allowed to occupy the land. They can only access it for purposes of the easement. They also cannot exclude anyone else from using the land. The exception to this would be if the use somehow interfered with the easement holder’s use.

On the other hand, the land’s owner may continue to use the easement and can exclude everyone else except the easement holder from accessing the land.

Here are two common types of easements:

Right of Way Easement

A right of way easement is the most common type of easement. It is also the easiest to understand. This easement exists when someone’s only access to something is through another person’s property.

For example, in more rural areas, a neighbor’s driveway might need to cut across one of your pastures to access the main road. Another example of this would be a public pathway to a public lake or park. Or, two homes might share a driveway that forks off to access the two houses.

In all of these cases, the owner of the land retains full rights to it. All the easement does is allow other parties to legally access those small parts of the piece of property.

Often, people wonder, “What is the difference between as easement and a right of way?” Now you know: There is no difference. A right of way is simply a type of easement that allows free movement.

Utility Maintenance Easement

A local utility company might use this easement to run electric and cable lines through properties. This type of easement is very popular in both rural towns and new cities. This is because the cables must be run through the properties to connect with existing power lines.

Utility maintenance easements make sense to property owners. Without granting them, there would often be no way for them to receive power.

What to Know about Easements Before Buying a Property

Always ask questions.

You need to know if a property has easements.

You need to know exactly where they are.

Finally, you need to know how long they will last. This is because some easements are permanent and will remain in place no matter who owns the property.

However, a new owner can cancel some easements. This depends on whether the easement is an “appurtenant easement” or an “easement in gross.”

Appurtenant Easement

Appurtenant is a legal term that means “belonging to someone else.” This means that the estate holder did not create this easement. The easement owner did.

Usually, neighbors and utility companies request these kinds of easements for things like property access. An appurtenant easement is permanent and stays with the house if you buy it.

Easement in Gross

When granting (or reviewing) an easement in gross, a property owner has a lot more influence. For example, let’s say there is a great swimming hole behind your property. You can grant an easement in gross to your neighbors to allow them to pass through your property to access it.

Because you own the land and you granted the easement, you can revoke access at any time. It might create a little bit of social tension between you and your neighbors if you suddenly constructed a fence that blocks access. But, legally, you’d be completely in the clear.

This is also the case if you purchase a home that has an easement in gross. As the new owner, you do not have to leave the easement in place.

What restrictions do easements place on a property?

You cannot typically build on top of an easement.

So, if you plan on installing a swimming pool, a garden shed, fence, or a home addition, it is essential that you understand if the home you would like to purchase has any easements.

This is because if the power company has an easement through your backyard, then the home’s big backyard will have to remain green space and your renovation plans will need to be scrapped. This is called a “negative easement.” It means that the holder of the easement can prevent the owner of a property from using his own land in a certain way.

Do easements affect property value?

Yes, easements affect property value. This is because they are technically an encumbrance on the property. However, the kind of easement determines the intensity of the impact.

For example, if the power company has an easement in your yard, do they have limited access or are they allowed free rein? Asked another way: Does the company need to provide notice about its intended work, or can its employees simply show up whenever they would like to?

What if it’s a sewer company instead of a power company? And, most importantly, who is liable for damages, injury, or loss that could happen as a result of this easement?

Before buying a property with an easement, be sure to partner with your real estate agent to weigh the pros and cons.

Final Thoughts on Easements

When dealing with easements, always consult with your Realtor. In some cases, your Realtor might advise you to ask a real estate attorney for additional advice. This is particularly true when attempting to cancel an easement.

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Are you interested in buying or selling a house that has easements? No worries! The team at Clever deals with easement issues every single day and is here to help you through it. Call us today at 1-833-2-CLEVER or fill out our online form to get started.