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Easements 101 – What Exactly Is an Easement?
Tuesday, May 2, 2017

Whether you’ve owned a house for years, or you’re just diving into the world of home ownership you are going to hear the term “easement” bandied about.  And, if you are like most owners, you’ll nod your head knowingly while having no idea what an easement is or if your property is subject to one.  But because an easement typically remains valid even after property transfers from one owner to another, you should make a point to find out what easements are attached to the property and what the exact terms of that easement are.   To help you avoid any possible issues or disputes in future, we’ll talk a little about what an easement is:

The simplest definition of an easement is the right of one person to use property owned by someone else for a specific and limited purpose. To be legally binding and easement must be made in writing and the exact location must be specified in the deed for the property.  An easement can be made by verbal contract, but it is highly unlikely to hold up in court. 

Let’s look at the different easement types you may encounter as a property owner:

·        Utility Easement - Perhaps the most common type of easement, it gives utility companies or the city, county, or state access to the property to install and maintain phone, power, cable and sewer lines. You as the property owner may use the property in any way you choose so long as you don’t obstruct this access.  Typically, you will find these easements in the property deed and there will be a map showing the area to which the utility or municipality is entitled.

 

·        Private Easement - Private easements occur when a property owner sells an easement to an individual for various uses, i.e. allowing driveway access or sharing a sewer line or well.   Private easements often limit what the property owner can do on or around the area defined in the easement.  For example, if you granted an easement of solar access then you would not be permitted to plant trees or construct buildings next to the easement if they would block sunlight to the easement.  Because of these restrictions, it is vital that both parties review all documents carefully before granting easement or buying land with a private easement attached to it.

 

·        Easement by Necessity – You cannot block access to the home or property of your neighbor and so if they need to cross your land to get to their land it is considered a necessity and an easement is granted.  Usually this is addressed in the deeds of both properties at the time of the original division of land. Even though the easement is necessary, it is imperative to have the precise location of the easement by necessity documented on the deed.

 

·        Prescriptive Easement –Prescriptive easements, aka easements by prescription, occur when an individual has used an easement in a certain way for a certain number of years. In most states, a prescriptive easement will be created if the individual's use of the property meets the following requirements:

o   The use is open and notorious, i.e. obvious and not secretive.

o   The individual actually uses the property.

o   The use is continuous for the statutory period - typically between 5 and 30 years.

o   The use is adverse to the true owner, i.e. without the owner's permission.

 

·        Public Easement – Where a private easement grants right of access to an individual, a public easement grants the benefit of access to the general public for a specifically stated purpose. For example, if you own property that abuts a public beach the local government may attach a public easement requiring you to allow access to the beach through your lot. 

 

·        Easement by Prior Use – Occasionally a situation will arise where a landowner intends to form an easement but it does not include it in the deed to the land.  In this case, an easement by prior may be granted.  To establish this, the following five elements are necessary:

 

o   Common ownership of both properties at any one time

o   A severance of the properties

o   Use of easement before and after the severance

o   Notice of the easement

o   The easement is for necessary and beneficial use

 

For example, one person is owner of two separate lots.  Lot #1 provides access to the street and Lot #2 sits behind the first one.  The driveway that grants access starts on Lot #2 but must cross Lot #1 to gain access to the public street. The property owner sells Lot #1 but neglects to specify the driveway area as an easement in the deed. Because the owner must cross the property that he sold to get to the property he retained he could have the court decide that he is entitled to an easement by prior use. 

Now that you have a better idea of what an easement is you can make a more informed decision about any new property that you wish to acquire and will be better equipped to address any disputes that might arise over easements on property you already own.  Because there is much more to easements then we could touch on here, feel free to contact us to schedule a consultation. We’ll help you decide if it’s in your best interest to consult an attorney when faced with whatever issues may arise.





 
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