Real Estate Investing

What Is an Easement in Real Estate? 

May 15, 2024

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Definition And Types Of Easements

Easements grant specific access rights to parts of a property. 

Many homeowners and real estate investors will encounter a property easement at some point during their homeownership, either to use, purchase, or sell one. 

Easements do, however, have significant impacts on property rights and sales. It’s important to understand them so that you’re prepared should a situation arise involving an easement on your property. 

In this article, we’ll discuss what easements are, their various types, and their impact on property rights, ownership, and sales. 

What are Easements?  

An easement is a legal term for the right to access, cross, or use another person’s property for a specific purpose. This nonpossessory property interest is usually restricted to that purpose or for specific times. Easements are sold to another person by the property owner, and they are added to the property title and documentation. 

Easements are often bought by local public utility companies who need to access sewage, water pipes, telephone poles, power lines, or other utilities on a private property. However, easements can also be sold to other property owners, such as a neighbor. For instance, your neighbor might have an easement that allows them to cut through your property to get to their home. 

Easements are common in suburban areas, providing access within specific guidelines.  These agreements allow easement holders to access properties they don’t own, making them essential for various property interactions. 

How are Easements Established? 

The best way for easements to be established is via an express easement agreement. An express easement agreement is constructed to lay out the terms and boundaries of the easement, in addition to the payment required by the easement holder. Before the easement is officially sold to the individual or company, the agreement should be as specific as possible. This is because easements are often transferred in property sales. Utility easements fall under this category and are often purchased by the city or municipality and then included in the deed where future buyers will inherit them. 

An easement may also be implied. An implied easement is a more casual arrangement between an owner who agrees to let another person access their property for a specific purpose. An implied easement is not always a good idea due to the lack of legal enforcement. 

Easements can also be established by necessity. We’ll discuss easements by necessity in more detail shortly. 

Common Easements 

Many of the most common types of easements provide the easement holder access to one of the following: 

  • Utilities on the property  
  • Shared driveways in urban areas 
  • Beach or lake access 
  • Vehicular access to public roads 
  • Shared private roads in subdivisions 
  • Private land crossed to reach a bus stop, school, or other public facility 

Types of Easements 

There are many types of easements and different ways that they are classified, including the following: 

  • Positive and negative easements 
  • Utility easements 
  • Private easements 
  • Easements by necessity 
  • Prescriptive easements 
  • Easements in gross 
  • Easement appurtenant 
  • Avigation/aviation easements 
  • Historical preservation easement 

Let’s look at each of these types of easements in more detail.  

Positive and negative easements 

Positive (or affirmative) easements allow passage through or usage of a property. For example, the local government might have an affirmative easement over your property allowing neighborhood children to walk through your land to get to the school bus stop. 

Negative easements, on the other hand, restrict certain property developments. An example of a negative easement would be an easement held by your neighbor that prohibits you from building any structure on your property that would block their access to sunlight or view of the lake on a lakefront property. The former would limit your neighbor’s enjoyment of their property, while the latter would decrease the value of your neighbor’s home. 

Utility easements 

A utility easement is a type of positive easement between a property owner and a utility company, giving the latter the right to access utilities on the property for repairs, regular maintenance, etc. These are usually regulated by local governments. Also, the easement might specify that the owner must avoid building in an area covered by the easement as per the agreement. 

Private easements 

A private easement is an agreement between a property owner and another private party (as opposed to a local government). They are often established between neighbors when one individual has to cut through or cross another person’s property to get to a certain amenity, like a lake or bus stop.  

Private easements have an impact on future homeowners because they are usually added to the property deed. The next person who buys the home with an easement will also inherit them. The same applies to buyers—you could end up inheriting an easement from the previous owner of a new home you want to buy.  

Private easements can be revealed by running a property title search before buying or selling a property. 

Easement by necessity 

An easement by necessity is sometimes called an access easement. These easements are established when one party is required to use another’s land for a particular purpose. 

For example, imagine your neighbor cannot access their home other than by crossing your land. Their property could be landlocked in by yours. In this case, an easement would be granted to your neighbor by the government. Homeowners usually don’t have a choice over the easement in this case. 

Prescriptive easements 

A prescriptive easement is established when someone uses or accesses your property without a formal agreement for long enough that state laws decide they automatically have an easement. For instance, if someone has been crossing your land to access a lake for twenty years, they may be granted the legal right to do so in the future. 

The idea here is that if the property owner did not file an objection or explicitly forbid the person from accessing or using the land for that purpose, the trespassing person gains implied consent to do so over a long period of time. Prescriptive easements are decided by the courts, which is why property owners should take early measures to remove trespassers if they do not want neighbors or others to gain a prescriptive easement. 

Easement in gross 

An easement in gross grants an easement to a particular individual or entity rather than connecting it to the property itself. Easements in gross represent a personal interest in the property and exist as long as the easement holder is living. 

Easements in gross usually become void if the owner sells the property with the easement, unlike private easements. They are not transferred to a new owner if the property is sold. 

Easement appurtenant 

An easement appurtenant is opposite of an easement in gross. In this type of easement, two properties are legally connected—one as a dominant estate and the other as the servient estate. The dominant estate is the estate that benefits from the easement, while the servient estate allows it. For instance, if rights are granted to the owner of a neighboring property to walk on your land to reach a lake, your neighbor’s estate would be the dominant estate and your estate would be the servient one.  

An easement appurtenant is said to “run with the land,” meaning easement rights do transfer to the new owner if the property is sold (unlike an easement in gross). The easement is attached to a specific piece of land or property rather than a person, and it continues in perpetuity.  

Avigation easements 

An avigation easement is also known as an aviation easement. This type of easement concerns airspace, or the space above a property, and mainly applies to properties located near airports. Property owners are sometimes asked to surrender their rights to the airspace above their property to the government so that planes can fly within it.  

Avigation easements also determine how close airplanes can fly to the property. Although it’s the airspace under contention for the easement, avigation easements sometimes also affect what’s on the ground. For example, certain structures or objects (e.g., lights) can affect navigation, and would therefore be restricted in the form of a negative easement. 

Some properties near airports are zoned differently such that the property owner doesn’t actually own the land above their home. Be sure you’re aware of these if they apply in your region.  

Historic preservation easement 

This type of easement is a voluntary legal agreement designed to protect and maintain the historic value of a building or property. These are typically used when a building has historic, architectural, or other significance that the owner wants to be permanently protected.  

These negative easements usually restrict future development, renovations, and other changes to the building or land. The easement is then enforced by a qualified organization who manages and enforces it for perpetuity, binding not only the current owner but also all future owners of the property. 

Establishing a preservation easement may also make you eligible for certain tax benefits. You can learn more about historic preservation easements from the National Park Service Technical Preservation Services. 

Understanding easement types 

As you can see, each type of easement has a different purpose and structure. Utility easements grant access for maintenance and repairs, while private easements can be created, sold, or given. Easements by necessity ensure access for landlocked properties, and prescriptive easements are granted based on prolonged use. Understanding the differences is important as one or several could affect your property rights or sales process. 

Legal Aspects and Implications 

Easements have many legal implications, which is why it’s critical to understand their role in a real estate transaction. Pay close attention to issues arising from improperly created easements and shared private roads, as they can impact your property’s access and use. 

For instance, lenders often require recorded easements and clear road maintenance agreements to safeguard their investments. The various types of easements carry specific legal implications that can affect your property rights or value. 

Easements also affect buyers. A property title search on a new property you’re about to close on could reveal an existing easement that gives your neighbor the right to access the property. You may not have any negotiating power in this situation, and you must decide whether you still want to purchase the house. 

Easements are usually established for practical reasons, and many end up being beneficial for not only the easement holder but also the entire community (as is the case with utility easements or those allowing safe passageway to a public facility). However, if you’re purchasing a new home with a long-held implicit easement, you may run into trouble if you don’t want to continue the easement or establish it formally. 

Running a property title search is the best thing you can do to ensure you know about all easements recorded on your property. 

Conclusion 

Whether it’s for utility access or passage through a property, easements play a crucial role in granting specific rights to others. Understanding easements can help you navigate property ownership and usage more effectively. 

Remember to consult with a real estate attorney if you have any concerns regarding easements on your property.  

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