Easement: What It Is and How It Affects Homebuyers

When you buy a house, there’s a chance you’ll need to share a portion of your land — such as a private road or path — with someone else. An easement grants someone this right for a specific purpose.

While it might sound strange to allow others the right to use your property, easements are fairly common. As a property owner, though, you should understand how they work and when you might uncover one.

What is an easement?

A property easement is an agreement for someone else to use your land in some way without actually owning it. This term may come up when your real estate attorney or title company is researching the history of your home.

For example, a neighbor may use a path that runs through your yard or a utility company may walk onto your property to maintain pipes or cables.
 

Types of easements

There are two categories of real estate easements. One is tied to the property itself, while the other is associated with specific people.

Easement appurtenant

An easement appurtenant involves two properties, where one property owner grants the other the right to use a portion of adjoining property. It is tied to the property itself, so it remains in place no matter who owns the property.

For example: Several neighbors may share a path that runs through your property to a private beach. When you sell the home, the title will stipulate that the new owners must allow the neighbors access to the beach via that path. The same holds true for your neighbors — if they sell, the new owners of their homes may continue using the path.

The property whose owner granted permission for others to access it is called the dominant estate or dominant tenement. The properties whose owners are allowed to use the dominant estate are the servient estates or servient tenements. An easement appurtenant always favors the dominant estate at the expense of the servient one.

Easement in gross

This type of easement is tied to a person or entity, not the property itself.

If you sell the property, the easement will generally transfer to the new owner. However, the easement holder — be it a person or company — cannot transfer the easement to another person or company. The easement terminates when the person or entity stops using the property for the purpose allowed by the easement.

Learn More: How to Know If You Should Buy a House

How easements are created

Property easements may be created by circumstance or by a signed written document. There is no such thing as a “verbal easement” — any easement you grant verbally will need to be put down in writing for it to become enforceable and legally binding.

Easement by prescription

Prescription creates an easement when someone openly and continuously uses your land for a long time without your permission.

For example: Your neighbor accidentally built a fence on your property line years ago. To avoid a prescriptive easement, you must either take action against the neighbor to force them to remove the fence or give the neighbor permission (which you can later rescind) to keep the fence up.

If the person continues to use the land for an extended period of time — typically 10 to 20 years, depending on the state you live in — the circumstance creates an easement by prescription that allows the individual to continue using the property as they had during that time.

You can avoid a prescriptive easement by granting the trespasser written permission to use the land.

Express easement

An express easement is created when two people agree on the terms of the easement, write out those terms, and then sign the document.

For example: If a neighbor wants to use the boat dock on your property, both of you might sign an agreement creating an easement allowing them to do so. This would be an easement in gross — they may continue using the dock no matter who owns it, but they wouldn’t be able to transfer the right to another individual.

Implied easement

An implied easement is created by specific types of circumstances as opposed to an agreement between the parties.

There are two ways which implication creates easements:

1. Prior use: Prior use refers to how a property owner used a parceled-off section of land prior to parceling it off. That prior use creates an easement when any future owners would expect to use the land the same way.
2. Easement by necessity: Necessity creates easement when your neighbor has no choice but to use your property. Once the issue is resolved, you and your neighbor may decide to terminate the easement.

Example of prior use: You own a large parcel of lakefront property with a private road that stretches from the public street to the lake. You subdivide the property into two lots — one with the home on the section with road frontage, and one that stretches from the rear boundary of that yard back to the lake.

You’ve lived in the home and used the section of the private road that now belongs to the second lot for lake access. When you sell the home, your prior use of the private road creates an easement allowing the new homeowner to use the private road to access the lake.

Example of easement by necessity: If you own a piece of land with a long driveway stretching across the whole length, and you subdivide the land into one lot with street access and one without, the lot without would be landlocked. Street access is a necessity, so if you were to sell the landlocked property, the necessity would create an easement allowing use of the driveway to get to and from the street.

What easements mean for homebuyers

Homebuyers typically discover property easements in three ways:

1. The seller discloses a land easement before you put in an offer.
2. The title researcher uncovers one during the title search.
3. You research the property yourself through the local assessor’s office or county clerk’s office.

If you’re buying a home, you should find out whether any easements are associated with it. You’ll also need to learn the purpose behind the easement and how it will impact your homeownership experience.

Prescriptive easements may cause headaches down the road, so inspect your property before closing on the home.

Talk with your neighbors if they’re encroaching on your land. You may decide to offer written permission for them to use your property, so the terms are clear.

A title researcher or the seller should tell you about relevant easements during the home-buying process. They’ll provide disclosures that explain how you and other parties can use your property.

How to remove an easement from your property

In most cases, a land easement is a legally binding agreement that all parties involved must honor. If one party doesn’t follow the rules laid out in the agreement, the other party may sue.

For example, if you prevent your neighbor from using a shared path on your property, they may take you to court. But if that person constantly crosses other parts of your property, then you might be able to sue them if discussions won’t solve the problem.

To actually terminate an easement, you have a few options:

• Take the other party to court.
• Wait out the easement, if there’s an expiration date.
• If you created the easement, register the termination on the deed.
• Discuss the problem with the other party and reach a mutually beneficial agreement.
• Buy out the other person’s property and merge the land.

If you do get rid of an easement, register the termination at the local recorder’s office. They may charge a fee, but this process can help prevent future issues with the title.