Property easements can be a little hard to understand but they can have big impact when you buy or own a home. Normally when you buy real estate, you become its legal owner and have the right to decide who can enter your property and how they can use it.
An easement gives a person who is not a legal owner of your property the right to enter it without your permission and to use it for specific purposes. When you are buying a house, you are typically required to get a property title search which will look for easements. These easements are important to know about because they may affect your decision to buy the property or the price you are willing to pay for it.
When you own property, it is sometimes possible for people to create an easement. This is important to understand because it may be possible for your neighbors to create an easement which did not exist before and give them the right to use your property in a way they did not previously have.
Let’s talk about the different types of easements and start with the ones most likely to affect you when you are buying property. Then we’ll discuss easements when you own a property.
What is an easement in gross?
Easements in gross are often called "utility easements" because they give electric, gas, water, sewer, phone, and cable companies the right to maintain and repair equipment and infrastructure located on your property. Easements in gross like this are common because many properties have utilities provided by private or public companies. Easements in gross can also be granted to people.
What is an easement appurtenant?
Another common form of easement is an "easement appurtenant." This type of easement can give the owners of neighboring properties the right to use your property to access theirs.
For example, pretend your neighbors own a property behind a property you own and the only way for them to get to a public road is to use a private road that runs on your land. These neighbors may have an easement that gives them the right to use a road on your property to access theirs. (This form of easement can also be called an "easement by necessity" because the easement is necessary for the owners of the neighboring property to enter and leave their home.)
An easement appurtenant can also involve trails or paths that allow people to access community or public property. For example, if you live in a housing community with a walking trail, there may be an easement that gives your neighbors the right to access this trail along a path on your property. These easements can also affect access to public beaches, parks, and other kinds of public property.
Easements appurtenant are often said to "run with the land" which means the easement is a permanent feature of the properties and continues when the properties are sold to new owners.
What are historic preservation and conservation easements?
Properties may have a historic preservation easement, which are designed to protect the property’s historic character and typically limit how you may change or develop the property. Under certain circumstances, owners of properties with historic preservation easements may be eligible for tax deductions as a result of the easement.
A conservation easement is similar. These easements limit how land can be used or developed to preserve its natural features and may qualify the owner for tax benefits in certain circumstances.
These easements also run with the land, are permanent features of the property, and continue in force even when the property is sold to new owners.
What is an easement by prescription?
An easement by prescription is a way a neighboring property owner might create an easement on your property that did not exist before. They could do this by using your property as if there were an easement that gave them the right to use it. The rules for creating easements by prescription are complicated and can vary from state to state.
There are some common features of easements by prescription, however. Keep in mind that different states and courts may interpret these features in different ways:
- The use of your property must be "open" or "notorious". That is, your neighbor has to be using your property in an obvious way that you should have noticed.
- The use of your property needs to be "adverse," which means your neighbor is using your property without your permission. This is important to understand because if you give your neighbor permission to use your land, they may not be able to claim "adverse use" later to create an easement by prescription.
- The use of your property needs to be "continuous" which means your neighbor used your property regularly.
- Finally, the use of your property must occur over a set period of time. The amount of time required is different in different states. A period between 5 and 20 years is often used by the law and courts to establish an easement by prescription.
Easements by prescription often have the same function as easements appurtenant described above. That is, they give neighboring property owners the right to access their property using roads, driveways, or paths on your property.
Easements by prescription can also occur in rural communities where property owners can possess large tracts of land. For example, a neighbor might build a fence on land you own and begin using the land as if they had the legal right to do so. If this use continues long enough, your neighbor might gain the right to continue using your land through an easement by prescription.
Do easements include ownership rights?
No, in most cases an easement does not give a property owner who benefits from the easement any ownership rights to the property affected by the easement.
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Last reviewed and updated November 2021 by Freedom Mortgage Corporation