When you buy real estate, including in the form of a house and the land it sits on, it’s your private property to do with as you wish. As long as you follow local zoning and building code rules, you can put up a fence, repave the driveway or build an addition to the house to make it bigger.
But in some cases, in the form of an easement on your property, any of these actions could be a problem because the utility company, a neighbor or even the general public needs to legally access a portion of your property. To help you understand property easements, we’ll be breaking down what they are, how you may discover one on your property and what your options are from there.
What Is an Easement?
A property easement is the legal right of an individual, company or the public to use property privately owned by another individual for a specific purpose.
Examples include a utility easement for the local power company to access an electric pole on your property, or an easement that extends a neighbor’s driveway across your property because otherwise the neighbor would not have access to the road.
There are a few places where you can confirm the details of an easement on a property. A survey conducted by the city or county will often include legal easement details. A title search will typically reveal the most thorough evidence, as it’s also able to pull from any court records or public filings that address an easement. Sellers are often encouraged to disclose known easements in the seller’s disclosure during the sale process — and these are most important for an easement that isn’t formally recorded, but is a verbal agreement between the seller and a neighbor, for example.
Types of Easements
Easements can come in many shapes and forms. Here’s a breakdown of the types you’re most likely to come across:
— Easement in gross.
— Affirmative versus negative easements.
— Private and public easements.
Easement Appurtenant
When an easement is noted as appurtenant, that means it accompanies the property, regardless of who the owner is.
“Beachfront properties often have easements to allow the public to walk across the property to access the beach,” says Margaret Cook, executive vice president, general counsel and chief legal officer of Alliant National Title Insurance Company. Because the public has a right to this easement, it remains with the property regardless of who owns it, making the easement appurtenant to the property, rather than disappearing or expiring when the property sells.
Easement in Gross
An easement in gross, on the other hand, is tied to an individual or company rather than the land itself. Easements involving utility companies are typically easements in gross, because the utility company always has access, regardless of what otherwise happens to the property.
Utility easements are commonly established before residents begin buying in a new subdivision or the lots have even been separated into plats, or plots of land. “The utility company does not have ownership of the property, but prior to ownership in those subdivisions, the utility company gets an easement for each one of those plats … so they have access to be able to maintain those things,” says Kerron Stokes, a Realtor with Re/Max Leaders in Centennial, Colorado.
Affirmative Versus Negative Easements
In addition to how they are related to the property or involved parties, an easement can be affirmative or negative.
You’re more likely to encounter an affirmative easement, which allows access to a portion of a property, but there can also be negative easements that restrict the property owner from doing something to his or her property. For example, a negative easement could prohibit the property owner from constructing a building that would block a neighbor’s access to natural light.
Private and Public Easements
A private easement grants access only to certain individuals. For example, a shared driveway serves as an easement that allows two neighboring homeowners to access the driveway situated on both properties, but it’s not for use by the general public.
Similarly, if your backyard ends at a creek with a popular walking trail next to it, that walking trail would be considered a public easement. You cannot put up a fence to block people from using the established trail.
Prescriptive Easements
A prescriptive easement is one that has been acquired by repeated use without permission of the property owner, and it’s likely the kind of easement that will bother you most.
The criteria that make a prescriptive easement legally binding vary by state, though the details are often similar. In Utah, for example, a prescriptive easement has to be:
— Open. The encroaching individual did nothing to hide the use from the property owner.
— Notorious. The encroached-upon land was used in a manner that the general public would reasonably be aware of the land’s use.
— Adverse to the owner’s interest. The property owner did not grant permission to the encroaching party in any form.
— Continuous. Most states have a minimum period of time to form a legally binding prescriptive easement. In Utah the minimum is 20 years, while in Washington it’s 10 years.
An example of a prescriptive easement is a neighbor building his fence 3 feet over the shared property line, intentionally or unintentionally. If you don’t realize the fence encroaches on your land and neither party takes action for at least a couple decades, when a survey is conducted to show the original property line to be 3 feet within the fence, you may not be able to legally require that the neighbor move his fence.
The best way to avoid a prescriptive easement is to be diligent about your property, know the location of your property’s boundaries and know who is using your property. “You do have an obligation to make sure others aren’t doing that to your property,” Cook says.
What Are the Laws and Your Rights Regarding an Easement?
As the property owner, you have a right to do with your property as you please, as long as it does not violate the terms of the easement.
A 6-foot fence around your property that keeps the local utility company from accessing the utility pole in the backyard, for example, would pose a problem. However, if you inquire with the utility company first, it may agree to the fence, as long as there is no lock to keep a company employee from entering the property to access the utility pole. In other cases, the utility company may decline the change to ensure access is never blocked.
Can an Easement Impact Building or Renovations?
Most easements you encounter are not going to have a significant impact on your home value. They can, however impact your ability to construct new buildings or fences, incorporate features like a pool or even add to your existing home.
“Depending on the placement of the easement, (it) can determine what you can do with the property,” Cook says. She recalls a situation when a man purchased a home with the plan to build a garage. But based on the specifications of the utility easement on the property, the garage couldn’t go where the property owner wanted to place it, and it had to be built elsewhere on the land.
How to Challenge an Easement or Make One Official
When used for the general good, such as utility maintenance, access to a road and public access, an easement will often be held up in court. However, if the location of the easement renders your property useless or would significantly detract from the value of the property, you may be able to make the case for termination of the easement.
Stokes gives the example of a 10-acre piece of property with an easement that eventually becomes a road, effectively splitting the 10-acre parcel into an 8-acre parcel and a 2-acre parcel. Depending on how the land is zoned and what the owner planned to do with it, the new road could render the smaller parcel useless. If the court were to find in favor of the property owner, damages could be awarded to the property owner or the easement moved elsewhere to avoid such an issue.
Separately, many easements have a set period of time attached to them. Without having to challenge them in a court, you may be able to let an easement expire.
To have an easement legally terminated or to make one official, it will need to be publicly recorded. While some cases may involve simply drawing up a document and others would go before a judge, it’s best to enlist the help of a real estate attorney to make sure you take the right steps.
“Formalize your documents, go through a survey. Make sure you not only mark the boundaries of your property and the adjacent property, but the easement itself,” Stokes says.
When you decide to sell your property, be sure to include your knowledge of easements in the seller’s disclosure, especially if it’s just a verbal agreement between you and your neighbor. You’ll help the buyer avoid disputes and disagreements down the line by providing all the information in advance.
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