As you go through the home buying process, you may come across the term “easement” and wonder, “What the heck is it and why should I care about it?” Easements are absolutely something you should care about.
An easement grants someone the right to cross or use someone else’s land for a specific purpose. Even if you own the land, it means that you cannot control other people from using the land for the purpose specified in the easement. It exists regardless of who owns each property. If you’re searching for a new home or plan to sell a home, it is important to understand what an easement is, and check to see if any easements exist and also have your Attorney do some research. If easements do exist, they’re not going away just because you now own the home or sell the home.
Types of easements
There are three main types of easements: “In gross”, “Appurtenant”, and “prescriptive”. The names are a bit confusing, but we’ll explain what each one is and the relevance in a real estate transaction.
Easement in Gross
With an easement in gross, the property is the only consideration that matters. More often than not it would be a public utility line (electric, water, gas) which goes through the property. Let’s say there’s a public water line running through your property and an easement in gross exists. If there is a leak in the water line, a maintenance crew from the water company could legally come and dig up your yard to repair the water line. All that would be required is that the easement be recorded as a public record. Although it doesn’t seem fair for someone to come dig up your yard, it’d be even less fair if you had no way of knowing it was a possibility when you purchased the property.
Easement Appurtenant
An easement appurtenant is more commonly known as a right-of-way easement. An example of this is allowing a neighbor to drive across your property to reach their property. It doesn’t matter if the easement was agreed upon 25 years before and neither neighbor lives there anymore, the easement still exists as it stays with the property, not the owner.
If you’re buying a house where an easement appurtenant exists, talk to the seller about how it has worked over the years. Then, talk to the neighbor and find out how they perceive it. There could be little details, like who shares the driveway, mows the lawn, or shovels the snow.
Prescriptive Easements
A prescriptive easement occurs without the landowner’s permission. An easy example of this is if someone builds a fence 3 feet onto your property line. The easement doesn’t automatically go into effect. In order for it to go into effect the action must be:
- Open, so not done in secret.
- Notorious, so as the homeowner you must be able to easily see that the action has occurred.
- Hostile, completed without consent.
- Continuous, so for an extended period of time as determined by state law, typically between 5-35 years.
To finalize a prescriptive easement, the “hostile” party must file a claim proving that they have fulfilled all requirements in a prescriptive easement. While you most likely won’t come across a prescriptive easement, it’s important to be aware of them. It’s always best get legal advice when in involved with a prescriptive easement.
Check for easements when buying a property
Hopefully, this has answered your question: what is an easement? If you’re buying a house, make sure to ask the seller if any exist on the property. They should be listed in the disclosure forms. Call the utility company and/or look up public records, if the seller isn’t sure. Knowing what easements exist on the property you’re buying is important, because your brand new parcel of land may not be 100% yours. An experienced real estate agent and Attorney should be able to guide you through this process.
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