Understand Your Easement Rights on Your Property

Just because your name is on title of the new home you’ve purchased doesn’t necessarily mean that no one else has any legal right to a portion of your lot. It’s called an easement, and it can give your neighbors and other entities a right to access a certain part of your land in some circumstances.

Imagine making one last visit to a home you’ve just agreed to purchase, only to see the neighbor in the back cutting through your driveway to get access to the road. While you may initially assume the person is trespassing, he may actually have the right to cut through if an easement exists.

Before you agree to buy a home, it’s in your best interests to find out if there are easements on the property (which there most likely are), and understand all there is to know about them.

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What Exactly is an Easement, Anyway?

Simply put, an easement is a legal right given to cross or use another person’s land for a specific purpose. The key here is the “specific purpose,” which needs to be defined in detail. That means that your neighbor can’t arbitrarily put his patio furniture or start a vegetable garden on your land. The easement doesn’t give a person the right to possession; instead, it only gives the right to use it for specified intentions.

Stated otherwise, when a person or entity is granted an easement, only the legal right to use the property is granted, but title to the land is still retained by the owner. Easements are more commonly granted to utility companies, such as telephone or electrical companies to run cable and power lines. But sometimes easements can be granted to neightbors who need to cross through your land in order to access the street.

Three Main Types of Easements

Just about every property has an easement. As a property owner, you have the right to know what type of easement your land is attached to, and how it will affect the enjoyment of your property.

Easement in gross. The rights of utility companies to step foot on your property, as described above, are common, and are referred to as easements in gross. This is the most common form of easements, which grant utility companies the right to enter a property at no charge to provide their services. The majority of these easements are known about and easy to detect, such as easements for telephone and cable lines, and are typically discovered through a title search. But sewer and water lines aren’t always known about and are often discovered after digging starts to put in a swimming pool, for example.

If easements are discovered this way, and were not disclosed to you when you purchased the property, any reduction in the value of your home (should that occur) may be compensated through your owner’s title insurance policy. If the easement was known to the city and properly recorded, but you weren’t informed of it when you bought the place, the title insurance provider is obligated to pay you for any loss of property value as a result of the easement.

Easement Appurtenant. This type of easement can’t be transferred when the property sells, and as such, these easements are said to “run with the land.” That means that they’re part of the land’s ownership, and can’t be transferred with the seller upon the sale of the property. Easements for driveways, sidewalks and roads and sidewalks over a neighbor’s land, for example, fall under this type of easement.

Let’s say your neighbor is granted an easement appurtenant in order for him to access the roadway from his driveway. When he sells his property, the new owner will have the same limited right to cross your land to get to the street. The current and future owners can’t use your property for any other purposes other than to access the road. This type of easement should have been communicated to you when you bought your home, so you know that your land will be used in this manner, and you won’t be unpleasantly surprised.

The majority of easements appurtenant are created by an agreement between property owners or when a subdivision is created. Sometimes landlocked parcels of land that have no access to roadways are subject to an easement appurtenant by necessity over an adjacent piece of land. In this case, it needs to be proven that at some point in the past both properties were privately owned by the same person or entity.

Prescriptive Easements. These types of easements are the ones that cause the most animosity between neighbors, since they are created without the permission of the owner who’s property is being used. The use of prescriptive easements can be shared and don’t have to be exclusive, which means property owners are often not aware when a neighbor is granted the easement.

To illustrate, let’s say your neighbor builds a fence along what is assumed to be the boundary of the property. A few years pass, and one day your neighbor serves you with a quiet title lawsuit in an effort to establish a prescriptive easement to that portion of the land. After obtaining a survey, it’s discovered that your neighbor actually constructed the fence 3 feet into your side of the property’s boundary, and is now entitled to a prescriptive easement.

After the required number of years of hostile use have passed (depending on the state), the neighbor can legally acquire a prescriptive easement. The key here is that a hostile environment has to exist; a prescriptive easement can’t arise if you give permission for your neighbor to use and take that portion of the land.

What Are Your Rights?

If the house you buy comes with an easement, you’ll have to comply. If your new property is the only access that your neighbors have to the street, you can’t legally block them from getting there. If you did, you’d be considered to be trespassing on an easement by necessity, and you can even be slapped with a lawsuit.

Do Easements Limit Your Ability to Make Improvements on Your Home?

You’ll definitely want to be in-the-know if you plan on putting an addition to your home or building deck. If you erect a patio over top of a portion of the land that a neighbor is legally allowed to cross through to gain access to the street, not only could you be forced to take it down, you could also wind up in court. That’s why it’s crucial to find out if there are any easements on a property before you decide to buy it.

Can You Fight an Easement?

You might be able to successfully challenge an easement, but only if the circumstances are right. And be prepared to take the battle to court. It could be a simple matter if the holder of the easement – such as your neighbor – agrees to terminate the easement agreement. Sometimes easements might also have an expiration date, after which it no longer exists.

But many other times it can be tough to challenge an easement, particularly when it comes to prescriptive easements. These types of easements may be able to be challenged by claims that the part of the land was abandoned. If that’s the case, you’ll probably want to speak with a real estate lawyer for advice.

When you agree to buy a home, it’s in your best interests to find out everything there is to know about it. Just as important as it is to have a home inspector on the job to uncover any physical defects, it’s just as important to find out if any current easements will compromise your enjoyment of your new home.