Everything You Need To Know About Easements

EasementThe property discussion might be very tricky sometimes. Does your neighbor use the roadway that passes your private property? Does a local utility company have the right to access a pipe buried in your yard? One day you may wake up and find out that you have to share a part of your possessions. Here are several things that you should know about easements.

An easement is a legal, non-possessory right to use or/and enter someone’s land for a particular purpose. It means a lesser interest in someone’s property, a legal arrangement by the landowner and a no owner in some way. There exist plenty of varieties of this type of property right (i.e. easement for ingress and egress over someone’s property, ross-access or reciprocal easement and maintenance agreement, conservation easement, construction easement, condominium/town-home declarations, etc.)

EASEMENT CREATION

An easement is usually created in the same way as any other written document, such as a contract or a will, with its typical characteristics (a signature, a form of a written instrument, a proper delivery of the document). Its content is usually different, depending on the circumstances. An easement is created by express language/grant (by one party and transferring it expressly to another person), or by reservation (by one party with the right to retain it if the property is transferred).

EASEMENT OBJECTIVES

After an easement is issued, questions about dimensions, location, and scope of interest may arise. These questions have their own specific and are typically solved on a distinct basis, depending on the method it was created. Every single detail must be covered by the written document. However, written easements are often vague or incomplete and it creates uncertainty

Anyone buying a house should be sure to find out exactly what easements a property is subject to, before closing the deal.

DOMINANT VS SERVIENT ESTATE

An easement holder is someone who has the right to use another person’s land in a particular basis. His/her rights vary among jurisdictions. The land covered by the easement is the “servient estate” or “servient tenement”.

The title owner (the property owner), generally attached to “dominant estate” or “dominant tenement” is a person that allows using his/her piece of property without transferring it.

EASEMENT TRANSFERABILITY

  1. The transferability of an easement is a real estate transaction, and depends on its nature (appurtenant or in gross).

An easement appurtenant is an easement that is created in order to benefit a particular piece of land (dominant estate/tenement) rather than a particular one. It is transferred with the dominant property, even if this is not mentioned in the transferring document.

An easement in gross is an easement that attaches a particular right to an individual rather than to the property itself. Because this type of easement is considered to be a right of personal enjoyment for the original holder, they are generally not transferable.

Note! Easements appurtenant are insurable while easements in gross are not.

Types of Easements

There are several types of easements, including utility easements, private easements, easements by necessity, and prescriptive easements (acquired by use of property).

  • Utility Easement – If you own a land, on which your home rests, the utility companies might have the rights to use segments of it (in case that it is connected to a city power grid, or water system). They are designed for overhead television, electric or telephone lines, and underground water, sewer or cable lines.
  • Private Easement – a private easement belongs to private individual or entities. It is issued when a property owner decides to sell the right to use a part of its possession, for example to use as a driveway, solar access or sewer. When you’re building a house, make sure it fits every private easement, because you may find out that you’re very limited in your possibilities.
  • Easement by necessity - is created in order to allow you to cross someone’s property for a legitimate purpose. Even if it’s not written down, the law grants people the right to access to their homes through your property, when it is the only possible way. In this case the land is subject to an “easement by necessity”, and the property owner may not interfere with the neighbor’s legal right. The difference between an easement by necessity and any other kind of it is that necessity arises only when “strictly necessary”, whereas the easement by implication can arise when “reasonably necessary”. An easement by necessity exists only as long as the need exists.
  • Prescriptive Easement – is issued when someone acquires an easement over another’s property for a particular purpose for a set period of time. The length of a prescriptive easement varies from one state to another. The continuous use is generally between 5 and 30 years, depending on common laws. The main issue with this type of property right is that they do not show up on title reports, and the exact location of the easement is not always clear.
  • Floating Easement – the right to use a property as an access to use another property connected to the former without specifying the method or limiting to the scope of such utilization to any particular portion.
  • Quasi Easement- is issued when both tracts of a land are owned by a single person. A quasi easement can be converted into a true easement if the landowner sells one of the tracts of his/her land.
  • Affirmative Easements - an affirmative easement gives the right to do something, or requires to do something.
  • Negative Easements – the promise not to do something, with a certain piece of possession.

Additional Information

An easement is generally a perpetual, non-revocable right. It is insurable from a title insurance standpoint, typically recorded. It is also a more powerful property interest than a license.

It is extremely important to be familiar with your property rights. The misunderstanding of where your possession starts and finishes might cost you a lot, so in order to avoid disputes consider asking a real-estate lawyer’s advice. Easements are a helpful way to provide pathways across lands and their owners, but if you feel that someone is trespassing your possession illegally, don’t hesitate to consult with a qualified attorney.

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