Easement, Defined And Explained

An easement may not be top of mind when looking into the more exciting points of buying a house. (You may be more interested in checking out beautiful kitchens or gorgeous landscaping.)

However, learning that a property has an easement may give you pause. You may wonder what easements are in the first place, and that's a great question.

Let's look more closely at the easement definition, how it works, types of easements and how to create or remove an easement.

Easement: Definition And How It Works

An easement refers to a legal term that grants a person or named entity the right to access another person or entity's land.

For example, if your neighbor must cross your land to get to their house, an easement can give them access to your property for a limited and specific purpose. Another example: A right-of-way easement can involve burying a gas pipeline across your land without giving the company who does so ownership of your property.

A property easement occurs when a landowner has title to a piece of land, but another individual or entity uses that land for a specific reason. Several parties are involved: the grantor, the property owner granting easement and the grantee, or the individual or entity that receives the easement rights.

Should You Avoid Buying A Property With An Easement?

Buying a house with an easement ultimately comes down to your comfort level with that particular easement. Some easements may feel like a benefit, others may feel like a burden. For example, an easement could come with a possible decline in property value and how you enjoy the property. You can look for easements by obtaining:

• A property survey: A property survey is a drawing of your house that goes over the lot, property lines and other structures. It confirms land boundaries.
• A title search: A title search through a title company digs up any easements, liens or encumbrances that could impact your property rights. If you get a mortgage, your lender will require you to get a title search.
• Seller's Disclosure form: A Seller's Disclosure discusses known issues with the home and any ownership limitations. However, your state may not require it – you may live in a "buyer beware" state.
• Real estate attorney assistance: A real estate attorney could help you if you want to challenge the existing easement. They'll know whether you can challenge the easement and explain what an existing easement means for the property you plan to purchase.

Get as much information as you can about the easement – consider where the easement is and how it affects the property you may buy.

Types Of Easements

There are different types of easements to know about, including an easement by prescription, easement by necessity, easement appurtenant, easement in gross, private easement and utility easement, but what does each one mean?

Let's look at each type individually and explore the differences between each.

Easement By Prescription

An easement by prescription, also called a prescriptive easement, means that someone openly uses your land regularly for a specific purpose without permission in a way that the owner is aware of.

For example, if kids walk across your yard to the school bus daily, they may establish a right to use your property over time depending on state law. It varies by state and could take as little as a few years to establish or up to over 20 years.  

It's worth noting that an easement by prescription differs from adverse possession. Adverse possession means a person who has continuously used another person's property for a certain period can claim legal title. The adverse possessor can acquire ownership if the true owner doesn't object. They must use the property in an open, notorious, hostile way and for a specific time period.

Easement By Necessity

An easement by necessity occurs when local laws don't require an easement to be written and enforced. For example, if you can't get to your home unless you cross over a neighbor's property, it may automatically require an easement by necessity. 

Easement Appurtenant

An easement appurtenant links properties together. It gives one owner limited rights to the other's property. An easement appurtenant “runs with the land” meaning it is tied to the property and stays with it regardless of who owns the property.

There are two types of properties in an easement appurtenant:

• Servient estate or tenement: The property providing the easement, which keeps ownership but must respect the rights granted to the dominant estate.
• Dominant estate or tenement: Enjoys certain rights from another property without owning it.

Let's look at an example. In a landlocked property, an easement appurtenant allows your neighbor to access the public road even though they go over a portion of your property to access it. Your neighbor is the dominant tenement, and you're the servient estate in this situation.

Easement In Gross

An easement in gross also allows an individual or entity to use a parcel of land owned by someone else, but a "dominant" estate isn't involved. An easement in gross doesn’t transfer when the land is sold because it is tied to a person and not the land. That's the difference between an easement in gross and an easement appurtenant.

Private Easement

Other parties may use a private easement to utilize your property for one reason or another, such as allowing a neighbor to hunt on your property. A private easement between two parties may give one party the "right of way" to do something on your property. For example, if your neighbor wants to build a garden shed on your property, you'd grant or sell them a private easement.

Utility Easement

A utility easement is when a utility company or municipality is granted the right to access and use a portion of some one’s property for installing, maintaining or repairing utility lines or infrastructure, such as electrical lines, gas and water mains.

How To Create A Property Easement

You typically don't have to do anything to get a property easement – they usually transfer as part of property ownership. However, if you know there's a need, the most common type of easement comes about through an express easement, when two parties agree on an easement, then go to an attorney to create and sign a legal document with the specific information outlined.

They may also consider an implied easement, which means they agree on the easement but it's not legally documented. An easement by necessity may also come about if someone has no choice but to use someone else's property.

How To Remove A Property Easement

What if you want to get rid of an easement? Removing an existing property easement may seem like a tricky process, but you can accomplish the task using a few different methods:

• Natural expiration of the easement
• Formal written agreement
• Easement holder signs a release to the servient property holder
• Servient property owner purchases the dominant property
• A lawsuit to contest the easement
• Dominant easement holder gives up the easement by transferring the easement in deed to the servient owner

Hire a real estate attorney to help you through the process, because some easements can be more difficult to remove than others, depending on many factors. You may even want to explore the possibility of using a quitclaim deed, a legal document that transfers ownership rights, with a real estate attorney.

FAQs About Easements

Still have questions about easements? You may be able to get all your questions answered through the following questions.

How does an easement impact a property’s value?

Easements may or may not affect a property's value. For example, they may negatively impact property value because home buyers may not be interested in purchasing a property with an easement, no matter if they would become the dominant or servient property.

How can I be aware of an easement on a property I’m interested in?

A title search will typically notify prospective buyers when an easement pops up during your home search. However, you may have to contend with a poorly recorded easement or one never written down (often called an implied easement because it only exists when needed).

Consult with a real estate attorney if you're concerned about easements on a property you're considering.

Why is it important to know about an easement on a property I’m interested in buying?

It's important to understand exactly where an easement is located on a property because it may affect your personal use of the property – and other people's use of that property. You might not like neighbors driving on your property to get to their homes, so it's important to consider all the pros and cons once an easement exists. You may also want to learn more about how to get the easement removed before purchasing a property, which you can do with the help of a real estate attorney.

What’s the difference between an easement and an encroachment?

It’s common for people to confuse easement with encroachment, as both refer to a homeowner using a neighbor’s property in some way. However, the distinction lies in how the involved parties view this property use. An easement involves both parties consenting to the property’s use, whereas an encroachment involves unauthorized and unwelcome use of the property.

The Bottom Line

Easements usually come about due to necessity. If your neighbor can't get to a public road any other way than by crossing your property or a service company has no other alternative, there's really no other choice.

You don't necessarily need to avoid a property with an easement – in some ways, it's a personal decision. Understand easements prior to purchasing, particularly when you start the home search process. Get to know the different types of easements and how to add or remove one if necessary. If you want to challenge an easement, you may have an uphill battle on your hands – get a real estate attorney involved.

Another term similar to an easement is an encumbrance. Read our article to learn more about encumbrances.