Understanding easements is important when purchasing a home. Easements effect most properties and effectively limit how portions of the property can be used. It is, therefore, incumbent on a property owner to understand the types of easements on their property and what they mean.
What is an Easement?
This example specifically involves an easement, which is a property right that gives its holder an interest in someone else’s land. Easements impact many different types of real estate transactions and are used for conservation reasons too. Despite their importance, many individuals lack a clear understanding of easements and the legal problems that can arise from them.
An easement is defined as a nonpossessory interest in someone’s land. The non-possession aspect of this is the most important thing to understand. This easement is a property interest that allows the holder of said easement to use property that he doesn’t own or possess in any way. An easement doesn’t give the easement holder the ability to occupy the land or to exclude others either. The possessor (owner) of the land can continue to use the easement and can exclude everyone except an easement holder from the land.
Understanding Servient Estates
Any land affected by an easement is known as a servient estate. A land or person benefited from the easement is known as the dominant estate. If the easement benefits a land, it is said to be easement appurtenant. This easement appurtenant only benefits an individual personally not the owner of a piece of land as this is “in gross.” An easement in gross conversation is affirmative in that it authorizes the use of someone’s land.
How Easements are Created
Easements are created with a deed or some other written documents such as a contract or even a will. Creation of said easement requires the same formalities as the creation of other interests in land or a transfer. They require a signature and proper delivery of the document. In some cases, a court will create an easement. These are known as easements of necessity and easements implied from quasi-easements.
Types of Easement
There are many types of easements. Here we will define each of the most popular ones for your understanding.
An aerial easement is similar to the letter T in that the area at the base of the T and the top of the T is a part of a safe distance from wires, which can move from side to side. These are created for safety and for the security of the electric lines in and around your property. The easement holder has the right to restrict the height of anything planted under or within a certain distance of an aerial easmsnt in order to protect overhead lines.
This is the most common easement type. It is typically given in writing to a utility company. They are described in a certificate of title or a property deed. The existence of these easements doesn’t affect daily life. The understanding is that you can plant on the property, live on it and even build something on it as long as you don’t interfere with the utility’s use of the easement in place. If you want to know more about these easements, call the utility company. You can also access the county land records office or your town’s city hall and ask for more information. A survey of your property should also show the location of all utility easements on your property. Generally, you cannot build a “permanent structure” on an easement. For example, decks are easy to remove, but a pool is not, so utilities will allow decks, but not pools.
A conservation easement is a voluntary legal agreement between both a land trust or a government agency and a landowner. This agreement permits the use of the land to protect any conservation values. The landowner retains most rights. This allows people to protect land that they love. This easement often protects public benefits such as scenic views, wildlife habitat, water quality, farm and ranch land preservation or historic preservation. If you’re placing land under easement, you can work with your trust to decide on the specific term that is right for the land and you. Every easement is unique, but typically all farming and ranching are usually permitted.
This is an easement that is acquired for someone to have access to another’s land for a reason. This means they can use the property openly and continuously for a set period of time that is put in writing. This is typically used when someone uses land for access such as a shortcut, beach path or even a driveway. The length of this particular use is required in writing and varies from state to state. Most require 10 or 20 years. Payment of property taxes is not needed for a successful prescriptive easement claim. More than one person can create a prescriptive element in the same portion of said land.
Drainage issues in neighborhood can cause flooding. A drainage easement on a new home parcel uses your land in order to direct water away from the street. The land and the pipes may move the excess water through the land easement area. Homes that are located on hills and properties with drainage channels or near rivers or even lakes frequently allow these types of easements.
In conjunction with these drainage easements, land easements give towns and counties the space needed in order to place underground pipes that take rainwater away and into a sewer system or into a body of water. This drainage system protects the streets from flooding dangers. It also helps to reduce the damage from standing water from melting snow or rain (or both, depending on your location).
With this type of easement, a property owner can sell an easement to someone. For example, they may want to use a driveway or a pathway or solar or even sewer access. Private easements are often sold when an uphill house is being built and a pipe from the house to the street must go right under another property. Any private easement should be referred to in property papers with a reference number. The county clerk can help you to located this information specifically if you shall need it.
Easement by Necessity
This type of legal easement exists if absolutely necessary for someone to cross another person’s land for a purpose. The law grants people a right of access to homes. If the only access to a piece of land is by crossing your property, an easement is needed. This is known as an easement by necessity. When land is subjected to this type of easement, the landowner has no right to interfere with their ability to access their land.
Legal Disputes Over Easements
Ultimately, a property owner may not interfere in any way with the purpose of a legal easement. For example, if the electric company has wires strung across the right of way, you as a landowner cannot take them down or block their path in any way. If you interfere with any easement, you can end up liable to the owner of the easement for any damage and can be subject to a court action ordering you to stop that action.
If you find yourself in a dispute over an easement, see an experienced local real estate attorney. The legal implications of these easements can be hard to understand and it’s important you understand your rights.