What Is An Easement In Real Estate?

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An easement is a common finding during a title search, the crucial step in the homebuying process that confirms the seller’s legal ownership of the property and uncovers any claims or restrictions tied to it. But, while an easement is one such restriction — in that it gives someone other than the owner rights to use part of the land — it’s not necessarily a reason to walk away from the sale. Read on for everything you need to know about this potentially tricky real estate issue.

What is an easement?

An easement, by definition, grants another person, entity or business the legal right to access or use someone else’s property. It basically gives a non-titled party an interest in the property. The owner still has full ownership and rights to the land, but that’s limited by the rights of the easement holder, who has rights to use it for specific reasons.

Private easements can be drawn up between neighbors, for example, while public ones are typically between the property owner and a municipal agency or utility. For example, easements are often granted to utility companies for things like water service, sewer lines and drainage, as well as access to transportation routes. Easements may be above ground, below ground or both, and a single property may have more than one.

What are they used for?

While it might sound strange that someone else has legal rights to your private property, easements are not unusual. Many properties have easements in place, for example, so that utility companies can access their lines. In some subdivisions or urban areas where space is tight, an easement may be created for neighbors to share a driveway. In coastal areas, there may be an easement to allow others to use a stretch of beach that’s on private property, or a path to the beach that crosses the property. Easements can also allow for vehicular access to and from a public road.

Common easement types

Here are a few of the most common types of easements. Don’t let the legalese confuse you — these are fairly straightforward concepts, despite their complex-sounding names.

• Easement appurtenant: “Appurtenant” is a legal term that basically means accompanied by something else. In this case, the easement is legally tied to the property. This scenario is permanent — an easement appurtenant stays with the property regardless of ownership and transfers to any new owner along with the title.
• Easement in gross: Think of an easement in gross as a permission slip you grant to allow use of your property. It belongs to the individual or entity it’s granted to, allowing them to use the property in a specific way. Common examples include utility company access to power lines or a neighbor’s right to fish in your pond.
• Easement by prescription: An easement by prescription, or prescriptive easement, happens when an outside party uses the property openly but without formal permission, for so long that the usage actually becomes legal. Examples include a neighbor’s fence built over the property line or regular foot traffic across the land.

Buying a property with an easement

If an easement is found during a title search, it’s not necessarily a red flag that means you should walk away from the deal. But it can impose restrictions on how a property is used, or what kinds of improvements can be made, so it’s important to make sure you fully understand the restrictions before you buy. It’s smart to consult with a real estate attorney on these issues.

Here are a few factors to keep an eye on if you’re thinking of buying a home with an easement in place:

• Legal considerations: Trouble generally only arises if the easement wasn’t created properly or when it affects access to the home. The latter situation usually involves shared private roads — specifically, who is responsible for ensuring maintenance of the road. Sometimes, a mortgage lender will require that there be a permanent, recorded easement in place; some require a clear road maintenance agreement. If it’s not done correctly, a lender might deny your loan.
• Enjoyment of property: The bigger concern for homebuyers, typically, is how easements can affect your enjoyment of the home — or your relationships with your neighbors. Some easements can affect what you can do on your land. For example, if a previous owner granted a solar easement to a neighbor, you may not be able to build structures, plant trees or create features that could block your neighbor’s sunlight. If you’re in a picturesque location, a neighbor may have a scenic easement to protect their view, preventing you from making any changes or additions that could block that view.
• Home improvements: There may be implications if you plan to renovate, as well. If you’re buying an older home, for instance, there could be a historic-preservation easement that stipulates what changes, if any, you’re permitted make. And if you’re buying within a homeowners association, be sure to read your HOA’s rules very carefully — there may be easements in place that govern whether you can do things like add a patio or install a fence.

How to create an easement

Typically, an easement can be created in one of three ways:

1. The most common is an express easement. This is when two parties agree on the easement, then create and sign a legal document outlining the specifics. Again, you’ll want an attorney’s help with this.
2. An implied easement is more casual. Here, both parties agree to some form of common-sense usage, but it’s not written down. (Legally speaking, a formal express easement is likely a better idea.)
3. An easement by necessity is created when one party has no choice but to use another’s property. For example, if you’re in a small subdivision on a private road that’s technically the driveway of the first home in the development, and you need to use that road to access your own home.

How to remove an existing one

Ending an easement that’s already in place, however, can be tricky. Some are easier to remove than others, particularly if they come with a preset expiration date.

A residential property’s easement in gross, granted to an individual, can’t be voided until that individual passes away or formally agrees that it is no longer needed. If the easement was in place when you bought the property, termination may require a court order.

Appurtenant and prescriptive easements can be ended by formal written agreement with the other party. Whether or not the other party will be agreeable, however, is another issue — you may be met with a handshake, or with a court date.

Bottom line

An easement is essentially a legal right for one party to use another person’s land for a specific purpose. Many types are common and shouldn’t automatically be considered deal-breakers for homebuyers. However, they can be complicated, and easements that are poorly drawn or unclear can quickly become a nightmare. Before you commit to a purchase, be sure to have any easements carefully reviewed by a real estate attorney.