Know Your Easement Rights Before Buying Land

Know Your Easement Rights Before Buying Land

Did you know that just because you’re the sole owner of your land, you may not be the only one that has legal access to it? Many people are forced to learn about easements when it could be too late...after they’ve already made their property purchase.

Would you still buy the land you're looking at if your neighbor has to drive through your property to get to work every morning and has the right to do so? If the cable company needs to install cable lines can it do so without your permission? What if the city is installing water pipes and they need to run them directly under your property? Certain people are not too keen on sharing their land. It’s crucial to have a clear understanding of whether there are any easements on the parcel of land you're interested in purchasing, and to know where they are and what kind they are.

What is an easement?

An easement is a legal right to use another person’s property for a designated purpose without actually possessing it. This isn't a right for them to do whatever they want on your land. They can’t just plant a garden or build a storage building. They aren't allowed to occupy the land, only to access it for a specific purpose. When someone is granted an easement, they are granted a legal right to use the property while the title stays in the hands of the owner.

How are easements created?

Usually the easement creation process starts when a property owner is approached for permission to use his land for a stated purpose. If an agreement is reached, it will need to be put in writing, signed, and delivered to both parties involved. These documents should be as specific as possible and address characteristics such as property location, dimensions, and scope of the interest to avoid confusion and disputes in the future. Often these records are vague and imprecise causing the currents parties involved to be unclear on the intent of the easement. There are 2 main easement categories.

An easement appurtenant runs with the land. Appurtenant means belonging. This easement is attached to the land, and when the property is sold and transferred, the easement is transferred with it to the new owner. If a current landowner grants his neighbor an easement appurtenant to use his driveway to get to and from his own property, when the landowner sells his land, the new owner must automatically grant the neighbor access to use his driveway for the same specific purpose.

An easement in gross is a personal easement and applies only to the person you're dealing with at the time. It doesn't transfer with the property. Using the same example, if the current landowner grants his neighbor an easement in gross, when the landowner sells his land, the new owner will not be legally required to allow the neighbor to access his driveway to get to and from his own property.

Easement By Necessity Property

What are common types of easements and how could they affect you?

Utility easement

Perhaps the most common easement type is one that has been granted to a local municipality (like the city) or to a utility company. These easements are normally found on the property deeds and should be well defined on the area a utility company, for instance, is entitled to access. Power lines and cable lines may need to be installed or tied onto above your land, while electric, water, sewer, or fiber optic cable lines may need to be placed underground. You can use the land however you’d like as long as it doesn't interfere with the utility company's operations. Here's a short video reviewing the basics of utility easements.

Private easement

A private easement can be sold to individuals and its use is restricted to those individuals. A neighbor could be granted access to use a driveway or path. It could be that sewer lines need to be shared or you could even give someone the right to draw water from a well located on your land. These are affirmative easements which means they allow others access to use your land.

Negative easements restrict what can be done on a piece of land. If you buy property and your neighbor has been granted a solar access easement, you may not be able to plant trees in certain areas or do anything to impede their solar panels from receiving sunlight. Easements of air and light have become a big deal in areas like New York City where skyscrapers are popular. It essentially grants the holder access to the uninterrupted flow of light and air and prevents an adjoining landowner from building any structure that would obstruct it.

Easement by necessity

Any person has the legal right to access their home, and cannot be denied this access. If the only access to a piece of land is crossing through another person’s property, the law grants the landowner an easement by necessity to get to his land.

Prescriptive easement

Prescriptive easements occur when a person has been using someone else’s land for a certain length of time without the owner’s permission. The required length of time usually varies by state, although 10 or 20 years is common and some states require the easement holder to pay a portion of the property taxes on the land being used. This could happen if your neighbor builds a fence and part of the fence is on your property. If nothing is done by the required period of time, the fence can legally stay on your property and the land can be used by your neighbor.

Solar Access Easement

Preservation and conservation easement

In order to protect a property’s associated resources, a conservation easement can be sold or donated by the landowner. The result is a legally binding agreement that prevents or limits certain uses or development on the land while the owner still retains property rights. The idea is to preserve the land for future generations and might include protecting conservation values such as migration routes, water quality, or plants and animals on the endangered species list.

Preservation easements are similar in nature to conservation easements. Often referred to as historic preservation easements, they are designed to protect a significant, privately-owned historical property and often dictate how the property can and can’t be used.

It’s possible implementing these easements could lower the land value since it restricts what can be done with the land. They are legally binding and are passed on with the property even if it’s sold. If you're interested in learning more about conservation easements, the National Conservation Easement Database is the first nationwide database and website for sharing and managing information about conservation easements. According to the Land Trust Alliance, at the end of 2015, there were over 16.7 million acres of U.S. land protected under easements.

Red Wolf
Wikimedia/Matthew Zalewski
The red wolf is an example of an animal on the endangered species list that could be protected by a conservation easement.

The bottom line not just concerning easements but with buying property in general is to do the appropriate research on the property you’re interested in buying. To learn more about preparation for buying land, look at our blog post addressing 20 land buyer questions to answer that can help you determine whether or not you should make an offer on a property. Going to a little extra trouble can save you from larger headaches in the future.

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