Owning real estate dramatically expands your property rights compared to renting or leasing. Still, owners can’t do whatever they want with their property, and easements are one reason why. We will outline what easements are, how they work and how they can limit or expand your property rights.
Easement Definition and Examples
An easement gives a person, company or government the right to use someone else’s real estate for a specific purpose. It doesn’t grant them an ownership interest. How they can use your property depends on the type of easement.
Types of Easements
The three main categories of easements are appurtenant, gross and prescriptive. We’re going to tell you what these categories mean legally and then explain in plain English how they work. Easements are far less complicated than they may sound.
“Appurtenant” means that something legally accompanies something else. An appurtenant easement, then, is an easement that conveys with the property. In other words, it’s permanent and survives changes in ownership.
An appurtenant easement involves two neighboring properties. The dominant estate or dominant tenement gets to access another’s property. The property being accessed is the servient estate or servient tenement. An easement appurtenant should be recorded on the servient estate’s deed, and probably also on the dominant estate’s deed.
Let’s say you live in a community where half the homes are located on the lakefront, and the other half are not but have access to the lakefront. Your lakefront property might have an appurtenant easement granting your non-lakefront neighbor (the dominant estate) access to the lakefront via a path running along the edge of your property.
Easement by Necessity
An easement by necessity is a subcategory of easement appurtenant. While access to a lakefront might be a luxury, there are other situations where property access is a necessity.
For example, suppose you own a two-acre property. There’s another home on each side, a forest in the back, and a public road in the front. To take care of your aging parents, you decide to move them onto your property but to allow them to maintain their independence, you sell them the front acre of your property and your home.
You then build a new home on the back acre. The property deed needs to spell out an easement by necessity so that you can use the driveway that now belongs to your parents to access the main road from your new house. This type of easement can be legal even if it’s not recorded.
Easement in Gross
An easement in gross is the most common type of easement. Utility easements fall under this category. If you have water, sewer, gas, phone, cable or power lines on your property, the utility company might have an easement. Stormwater drainage channels and flood culverts also are examples of gross easements.
The utility company is the dominant estate or dominant tenement, the one who gets to access your property. Your property is the servient estate or servient tenement. A gross easement only involves one property and grants access to a specific entity, like the power company.
A gross easement doesn’t have to stay with the property through changes in ownership, unlike an appurtenant easement. In practice, it often does. If you sold your home, the buyer probably would not be able to get the power company to agree to relinquish its easement to the part of the yard that contains its power pole.
Similarly, even though a gross easement does not inherently allow the dominant estate to transfer its access to another entity, public utilities again tend to be an exception. If the power company changes ownership, the new company will probably still have the right to access the pole in your backyard, just like the old company did.
Historic Preservation and Conservation Easements
A historic preservation easement prevents current and future owners from modifying a property in a recognized historic district in a way that would detract from its historical significance. A conservation easement preserves land so it can’t be developed.
Property owners might choose to establish these types of easements to protect something they find valuable or think others will find valuable, such as a home that shows what it was like to live in the 1880s, a scenic view or a wildlife habitat.
There are also financial incentives. The owner of historic property or undeveloped land may be able to claim tax breaks such as a federal income tax deduction, and the property’s heirs may benefit from a reduction in estate taxes. Establishing such an easement may also result in lower local property taxes.
If an entity openly and continuously uses another’s real property for several years without the owner’s permission, they can acquire a prescriptive easement. The number of years varies by state.
The existence of prescriptive easements is why it’s important not to let a neighbor or the public use part of your property regularly without some kind of formal written agreement—unless you want them to end up with permanent rights that may even affect future owners of your property.
Homeowners associations (HOA) also need to be aware of prescriptive easements. Suppose, for example, that members of the public openly use a path located in an HOA for years. If the HOA didn’t attempt to restrict the public’s access to the path, the public could eventually gain the right to use the path via prescriptive easement. If the HOA later tried to gate off the path and the public sued, the HOA could lose.
How to Establish an Easement
The best way to establish an easement is with an express easement, meaning you put it in writing. This will help avoid future lawsuits, loss of enjoyment and loss of property value.
The way lots of easements actually get established is through implied easement: an informal, unwritten agreement with another party. Easements by necessity are often implied. And the lack of any formal agreement is what leads to prescriptive easements.
How to Find Out If a Property Has Any Easement
Before you buy or improve a property, you need to know if it has any easements. If you use part of an easement in a way that interferes with the easement holder’s use, you may suffer a financial and emotional loss when you have to take down the landscaping, trees, fence, shed, addition or other improvement you constructed in that area. A bunch of Houston homeowners found themselves in this situation after acting on an implied easement with a power company.
Here are the sources to consult to check for easements on a property:
- County land records office
- City hall
- Utility companies
- Property survey
- Title search
Title insurance can help protect you against undisclosed easements that the title company didn’t find before issuing a title policy.
How to Remove an Easement from Your Property
First, check to see if the easement has a termination date or is based on a condition that no longer applies. It’s possible the easement you want to remove is already invalid. Further, if an easement holder fails to use the easement for long enough, they may be considered to have abandoned it.
If the easement is still valid, you can request a release of easement to ask the dominant estate to relinquish their rights to access your property. You may have to submit a property survey and pay a fee to get the easement removed. The easement holder will need to file a quitclaim deed, a type of legal document, to formally terminate the easement and make it a matter of public record.
Credit: Forbes | Amy Fontinelle (Contributor) & Mike Cetera (Editor)