You’ve found the perfect home on the perfect piece of land and you can’t wait to have it all to yourself. Not so fast. Among the other steps to take when buying a home, you’ll want to check for any easements. And if there are any, you may have to share part of your property in some capacity.
A property easement is a legal situation in which the title to a specific piece of land remains with the landowner, but another individual or entity is given the right to use that land for a distinct purpose. For example, a utility company may have an easement that allows them access to an electrical pole on your property. Or, you could have an easement on part of your property if it blocks access to a main road.
Dominant And Servient Estates
When it comes to easements, there are two terms you’ll need to know: dominant estate and servient estate. A dominant estate, or dominant tenement, is the party that benefits from the easement, the party that can use the other’s property. A servient estate is the party that suffers the burden, or, in other terms, must allow the other party to use their property.
Types Of Easements
There are several types of easements, each with its own set of specific circumstances. If there is an easement on your home or you have one on another property, it’s important to know which type of easement it is, so you know your rights. Below, we’ll define each one and discuss how it works.
An easement appurtenant is a property easement that is not limited to a period of time or property owner but is instead, tied to the property itself. An easement appurtenant is often referred to as “running with the land,” as it remains in place even when the owners change. It’s an easement that benefits the property.
An example of an easement appurtenant is a property that offers the only access to a private beach shared by two neighbors. When the home is sold, the new owners must allow their neighbors access to the beach via their property because the easement stays with the home. During your house hunt, it’s important to carefully review property disclosures and check for easements before making an offer on a house. This way, you’ll understand all your property rights as a new homeowner.
Easement In Gross
An easement in gross is tied to a specific person or entity, not the property itself. It benefits the person who holds the easement. Utility companies often hold easements in gross to be able to build and maintain power lines on or near a person’s private property. Typically, the companies will have an utility easement to use the property to gain access to these lines.
A more personal example of an easement in gross could be one that allows a friend to use your property for hunting or a neighbor to use your pond for fishing.
An easement in gross is typically irrevocable and cannot be voided until the easement holder passes away or the home is sold. If the home is sold, the seller may transfer the easement to the new owner or the new owner can choose to deny the easement. However, if the easement is from a public entity like a utility company, you could be taken to court if you deny the easement.
While the easement can be transferred to new homeowners of the servient property, the easement holder cannot transfer their rights to use it to another person or business. Therefore, in the examples above, your friend cannot transfer the easement to another person so they can hunt on your property. And the electric company cannot give its easement to another company without the property owner’s consent. If a new person or public utility company wishes to use the servient property, they must file a new easement.
Easement By Prescription
Easement by prescription, also referred to as a prescriptive easement, is created when a person continuously uses another’s land for a long period of time as if they had an easement but is different from adverse possession. To get an easement by prescription, the following criteria must be met:
Continuous use for a specific period of time: Individual state law defines the time period that calls for an easement by prescription. For example, in the state of Michigan, someone must have been using the land for at least 15 years before they can get the easement. In California, it must be at least 5 years.
Open and notorious use: The use of the property must be obvious and observable, not done in secret.
Hostile use: The property was used without the owner’s permission. Despite the term, this isn’t always malicious. The person could be doing this unknowingly.
Exclusive use: This isn’t required in all states and the definition of exclusive use may differ from each state that requires it. Exclusive use could require that the use of the property cannot have occurred while the true owner of the property used it. Or, it could require that the property is used in a different way than what is intended for the general public.
Here’s an example of an easement by prescription. Let’s say you live on a waterfront property in California and a neighbor has used your dock for sunbathing and occasionally docking their boat. They never asked your permission, but they have been doing so for the last 5 years. They could get an easement of prescription to continue to use your property for such activities in the future.
Another example is if a neighbor unknowingly built their fence three feet over their boundary line onto your property and it was only discovered 15 years later. They may be granted a prescriptive easement since they meet all of the criteria above.
Affirmative Or Negative, Private Or Public
Whatever the type of easement, it can be a public or private easement and an affirmative or negative one. A private easement is one that grants land-use rights to certain people, whereas a public easement grants those rights to the general public. An affirmative easement allows someone to do something on the property, while a negative easement forbids it.
Creating An Easement
There are a few different ways to go about creating an easement. The method you use depends on the type of property you have, the reason for the easement and whether you can reach the easement amicably with the other party or property. If an easement needs to be created, it will happen in one of the following ways.
An express easement is the most common method of easement creation. It refers to one that’s put down in some form of writing, like a deed or will. It’s typically recorded in a legal document and signed by both parties.
Unlike an expressed easement, an implied easement is neither written down nor documented because it’s obvious, or implied, that the property would need to be used for the enjoyment and use of the other party.
Here’s an example of an implied easement. Let’s say you own a large piece of land on a main road and you decide to sell part of it. You sell half of your land (plot A) and keep the other half (plot B). The land is divided in a way that you can only access your land (plot B) by crossing the land you sold (plot A). So, when you sell plot A, it is implied that you can still use it to get to and from the main road.
Easement By Necessity
An easement by necessity, is created by law out of necessity, instead of by an agreement between neighbors. It’s usually created when the only reasonable and practical access to the property is through another’s property and an implied agreement cannot be reached. Once there is a new way to access the property (for example, if a new road or path is created), the easement can be terminated.
Rules Of Property Easement
Property easements can provide you or someone else the legal right to use a certain piece of land. They can benefit you as a homeowner or force you to carry the burden of others using your property. If you come across an easement in your homeownership experience, here are a few tips.
Buying A Home With A Property Easement
Before you purchase a home, you’ll read through documents called disclosures. These provide a buyer with more information, including anything that can negatively affect the value or enjoyment of the home. If the seller knows of any easements on the property, they are legally required to list them in the disclosures. That’s one way to learn if the home has easements. Another way is to visit the local assessor’s office or county clerk’s office at the county courthouse. They are typically listed on the property deed.
If the home has an easement, don’t fret just yet. While it could be an annoyance, it could very well benefit you as the homeowner. Or it could be an entirely neutral experience. When buying a home with a property easement, find out the purpose of the easement and make sure you understand how it could impact your homeownership experience. For example, if the easement is for a utility company to lay underground lines on your property, you may not be able to install that inground pool you were hoping for.
Of course, it might not even matter. If it is an easement appurtenant, it will stay with the property and you’ll need to deal with it. However, if it’s an easement in gross, it may not transfer over with the sale of the home.
Once you find a house you’re interested in and before you put any money down, you should check for property easements. A title search typically notifies you of any easements but you can also check county land records or property surveys for more information. If you have title insurance, your insurer may also cover any issues that involve easements.
Abiding By An Easement
An easement is legally binding and must be followed. If it’s not, you could be hit with a lawsuit, whether you have the dominant or servient property. For example, if the only way your neighbor can access the public beach is by crossing your property and you prevent them from doing so, they could sue you. However, if the easement states that they can only use your driveway to get to the beach and they start walking all over your property, you could take them to court.
To properly abide by an easement and ensure the other party is doing the same, make sure you understand each party’s rights. If you have questions or seek to understand more, consult a real estate lawyer.
Challenging An Easement
An easement can be challenged, but it’s an extensive process that may involve going to court. The process could be easier if the easement holder agrees to terminate the easement or if it has an expiration date. Otherwise, you may end up in court, in a complex dispute that often carries a lot of emotion if it involves neighbors. We recommend consulting a real estate lawyer to learn more about challenging an easement.
The Bottom Line
Understanding easements is just one part of knowing your rights and responsibilities as a homeowner. Easements can potentially affect the property value so it’s important to do your research before putting any money down.
To protect yourself during the home buying process, apply online today for Verified Approval with Rocket Mortgage® so you can confidently put your best offer forward.
An easement gives someone an interest in land that is owned by someone else. Learn the legal details of this complex property concept in FindLaw.com's article on the basics of easements.
This article will provide some basic information about easements including how easements are created and transferred.. An easement is a "nonpossessory" property interest that allows the holder of the easement to have a right of way or use property that they do not own or possess.. An easement doesn't allow the easement holder to occupy the land or to exclude others from the land unless they interfere with the easement holder's use.. In contrast, the property owner may continue to use the easement and may exclude everyone except the easement holder from the land.. Land affected or "burdened" by an easement is called a "servient estate," while the land or person benefited by the easement is known as the "dominant estate.". If the easement only benefits an individual personally, not as an owner of a particular piece of land, the easement is known as "in gross.". Two common easements created by implication are easements of necessity and easements implied from quasi-easements.. As a general rule, an easement holder has a right to do "whatever is reasonably convenient or necessary in order to enjoy fully the purposes for which the easement was granted," as long as they do not place an unreasonable burden on the servient land.. On the other hand, the owner of the servient land may make any use of that land that does not unduly interfere with the easement holder's use of the easement.. These include court orders restricting the dominant owner to an appropriate enjoyment of the easement, monetary damages when the easement holder exceeds the scope of their rights and damages the servient estate, and in some cases termination of the easement.. If interference with an easement causes a reduction in the value of the dominant estate, courts may also award compensatory damages to the easement holder.. Courts generally assume easements are created to last forever unless otherwise indicated in the document creating the easement.. An easement may be terminated when an individual owning the dominant estate purchases the servient estate, or when the holder of an easement releases his or her right in the easement (in writing) to the owner of the servient estate.. Finally, condemnation of an easement by a public authority, or condemnation of the servient estate for a purpose that conflicts with the easement, terminates an existing easement.
Do you own land in a residential or rural area? If you do, there’s a chance that a utility easement runs through your property. While…
This creates confusion when it comes to your rights and the value of the easement itself which is often worth less than your land.. While the land still belongs to you, utility companies might have special rights to a specific patch of land on your property.. A utility easement is often worth less than the physical space it takes up on your land.. There are land appraisers who specialize in valuing easements.. A utility easement is a portion of land on a private property used by utility companies.. Utility companies may use this portion of land for things like sewage, cable, or electrical lines.. In regards to how their built, utility easements can be overhead, surface, or subsurface.. The type of utility easement on your property impacts the land usage, and ultimately, the value of your property.. Valuing the worth of a utility easement is difficult given what is actually being sold .. Given the complicated legal nature of easements, it is important to consult a professional appraiser when buying, selling, or transferring land.. This method is more complex and more closely looks at the impact of an easement on the total property value.. With this calculation, the property owner and utility company must agree on what percentage of rights each party is entitled to.. PERCENTAGEIMPACT LEVELEASEMENT EXAMPLES 90%-100%Dramatic impact on surface use of land.Overheard electrical wiring, sewage, drainage, irrigation, tunneling for easy access.75%-89%Large impact on surface use of land.Overheard electrical wiring, sewage, drainage.51%-74%Some impact on surface use of land.Pipelines.50%Property owner and utility agree to equal use.Subsurface communication lines, sewage lines.26%-49%Little impact on surface use of land.. Subsurface or overhead rights don’t affect land utility.Right to air above utility easement area.0%-10%Almost no impact on surface use of land.Subsurface easement that takes up minimal surface area.For example, let’s say that the total square footage of your property is worth $100,000.. If the appraiser sees the damage as a possibility, then the cost of repairing those damages is added to the utility easement value.
What is a Utility Easement? How do public utility easements work? What are the important elements you should know!
A utility easement represents the right given to utility companies to use and access a part of a property owner’s land.. Utility right of way easement, utility pole easement or any other type of utility easement is written in the property deed.. Utility easements below ground Utility easements above ground Private utility easement Public utility easement. No matter the type of utility easement you are dealing with, whether it’s given to a private company or public one, below or above ground, the idea is to let a utility company use and access your land to install and maintain utility services.. A utility easement is a legal designation on land or property where the property owner grants utility companies the right of physical access and to build on a designated area of the land.. Even though a property owner grants use and access rights to the property to serve the property with utility services, the property owner remains the land owner.. Utility easements on property does not convey title to the property but grants “rights” of use and access by a utility company to service to land or property.. When a utility easement is granted on a property, the landowner must respect the area or space given to the utility company and keep the easement area free and clear of any obstruction.. Access your land to install the lines Install utility poles Enter your land to repair the utility lines Enter your land to repair the lines. In essence, the utility company easement is a right granted to the utility company to access, install, maintain and repair utility lines on your property.. On the other hand, as the property owner, your right of enjoyment of your land is limited or restricted as you need to accept the installation of a utility pole and leave sufficient space for the company to access your land to be able to service the utility lines.. Utility Easement: Utility easements on private property is the right given to a utility company to access and use for the purposes of offering utility services to the property or neighborhood A utility easement does not grant any property rights to the utility company but the property owner’s rights to fully enjoy the property is limited Utility services include gas, electricity, water, cable, Internet, television or other. Access EasementAdverse possession Affirmative EasementApparent Easement Appurtenant Easement Avigation EasementCommon EasementConservation EasementContinuous EasementConveyance Deed Cross EasementsEasement appurtenant Easement by necessity Easement by prescription Easement in gross Equitable servitude Neighbor disputes Property boundaries Property law Property ownership Real estate lawyer Real property Rights of way easement Structural encroachment Trespassing
What happens if there’s an accident? Who is liable for an accident on an easement? Here’s everything you need to know in this article.
It is a request to allow the county power lines to go through your property for the next five years as the city carries out major renovations on the public freeway nearby.. An easement grants one party the right to use another party’s property.. The next logical question would be – If you’ve allowed a portion of your property to be used to grant public access or by a utility company, who would be responsible for carrying out maintenance on said section?. Generally, if your property is being used for public utilities, it is the responsibility of the utility company in question or government to maintain the land to avoid disruption of services.. In all other easements, like one granted to a neighbor, the landowner must maintain it.. Nonetheless, the party granted the right of way is legally obligated to restore the property to its original condition if it gets damaged.. Maybe you’ve always wanted to build a swimming pool on your property, but you can’t because doing so would block the path your neighbor uses to access their house via an easement you granted them.. In most cases, the easement rights holder, i.e., the party that directly benefits from the easement, is primarily liable for negligently creating a hazardous situation that may result in an accident.
If you have additional questions, please reach out to the Planner of the Day 719-520-6944 – firstname.lastname@example.org
A Site Plan is an accurately scaled drawing of a lot or parcel showing, at a minimum, the property address, the schedule/tax number, all existing structures, easements, rights-of-way, setbacks from the property lines to the existing structures (if any), the location of the lot in relation to abutting streets, driveway/access location(s), and dimensions of the proposed structure and of existing structures, including height.. If your property is a platted lot in unincorporated El Paso County, the lot dimensions on the Site Plan should match the dimensions on the subdivision plat and show any additional requirements written in the plat notes (e.g., a setback that is more than required by the County Land Development Code).. This may include site plan or site development plan approval if a building or other development permit is required.. For construction of a new house (in addition to site plan and interior drawing review) the El Paso County Planning and Community Development Department requires that a Driveway Application and a Drainage Permit Application be approved and the Road Impact Fee be paid.. You must have interior drawings and a site plan showing the exact location of all structures on your property, where your driveway enters the property, setback and easements shown on all sides of your property lines, and the dimension of each structure, including the New Structure you are adding to your home.. Planning and Community Development authorizes building permits, so you will need to submit a site plan drawing with your building permit application, as well as a recorded copy of the accessory living quarters affidavit to Pikes Peak Regional Building ( https://assets-planningdevelopment.elpasoco.com/wp-content/uploads/Forms/LandUseForms/Accessory-Living-Quarters-Affidavit.pdf ).. – Application: a 2-page document, accessible on the El Paso County Planning and Community Development website, which requires you to fill in the property information as well as all applicable contact information and sign.. -Site Plan: The site plan will need to be submitted to verify that the existing structures will be contained within the respective lots and will meet all applicable setback requirements.