Why You Should Understand Easements before Buying/Selling a Home

Table of Content

Types of easements

Private easements vs. public easements

Frequently Asked Questions (FAQ)

What is an easement in real estate?

Is it bad to buy a property with an easement?

Do easements affect property value?

Can you build on an easement?

What happens to an easement when a property is sold?

Does a seller have to disclose an easement?

Who is the dominant owner of an easement?

What are the three types of easements?

Do easements have value?

What happens if an easement is not recorded?

Should I buy a house with an easement?

How to find easement information on a property

Why You Should Understand Easements

Property easements come in various shapes and sizes and can affect how you use your land, both now and in the future. An easement is a legal agreement granting the public, government departments, and utility companies access to a part of your property in certain circumstances. Here is what you should understand about the different types of easements before entering into a contract to buy or sell your home.

Easement meaning in real estate lingo, is when the title of the land rests with the owner, but other people have a right to access a portion of that land for specific purposes.

Property easements rights only grant:

• certain people or companies access (such as utility companies)
• for specifically defined reasons (such as pedestrians using a sidewalk on your property)

Types of easements

The two main easement types are an appurtenant easement and an easement in gross.

An appurtenant easement benefits another parcel of land. For example, when your neighbor’s property, known as the ‘burdened’ estate, connects your adjoining piece of land, known as the ‘dominant’ estate, to a public road that you wouldn’t have access to without the easement.

In contrast to benefiting a parcel of land, an easement in gross benefits an individual or entity. For example, a utility company burdens an estate by running power, cable, or telephone lines through the property.

An easement can either be affirmative or negative. The majority are affirmative easements, which grant the easement owner the right to use another’s property in a specific way. Conversely, a negative easement is less common and stops a property owner from using land easement in a particular way.

Private easements vs. public easements

There is also a distinction between private and public easements.

A private easement grants access to certain people and entities rather than allowing public use. Common examples of easements for private use include driveway easements between neighbors and utility easements for power and sewerage.

A public access easement provides the general public access to a portion of the burdened property, usually to access a natural or physical feature. For example, if your property bordered a park with a walking track, you could not restrict or prevent public access to the walking path. A national conservation easement database is available online.

Frequently Asked Questions (FAQ)

What is an easement in real estate?

A real estate easement is common amongst residential properties and defines the legal right of a non-owner to access another person’s property for a specific purpose. The easement holder doesn’t have a right to occupy the land easement or prevent others from accessing it.

If you own land with an easement, you can make use of the easement and exclude everyone but the holder of the easement from accessing it. Examples of easements you may see when buying a home include a shared driveway or a driveway that crosses a property to connect a neighboring house to the main road.

Is it bad to buy a property with an easement?

Some types of easements are unlikely to impact your appreciation or the property’s value, while others may cause difficulties down the line.

For example, driveway easements, where two or more blocks share access to a street via a long driveway, are common in many neighborhoods and generally don’t cause many issues.

In contrast, an electrical easement may mean there are, or potentially will be, powerlines installed near the property, and while not ‘bad’ per se, overhead powerlines can be an eyesore.

Do easements affect property value?

Easements are commonplace and often don’t impact the value or enjoyment of one’s home; however, due to an easement, real estate value may be reduced if the use or future development potential is significantly restricted. To help determine if an easement may affect your property value, consider the following:

• Are easements very common/ standard in the area? If so, this may not be a limiting factor for future buyers.
• What is the size of the easement relative to the parcel of land? A small easement on a large property is unlikely to be as problematic as the reverse alternative.
• Is the easement located where it may impact the usability or future developments, such as the center of the property?
• What are the terms in the easement agreement or deed?

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Can you build on an easement?

You can build on a house easement but be aware you may need to remove or dismantle your addition if it obstructs access to an easement holder. It is strongly recommended you check with your local municipality before building on an easement to ensure you do not breach any access points or property boundaries.

More minor additions such as gardens, children’s playsets, and fences may be easily dismantled and reassembled without causing too many issues should an easement holder, such as a utility company, require access. Alternatively, more permanent structures like home renovations or additions may turn into a costly nightmare if they obstruct an easement – so be sure to make the necessary inquiries before you build.

What happens to an easement when a property is sold?

An easement continues to exist after the sale of a property. Some agreements may specify a permanent easement, but easements can exist in perpetuity unless terminated by equitable estoppel, expiration of term in the easement deed or agreement, or other means.

The rights under an appurtenant easement real estate, which benefit a property, are attached to the land and are transferred automatically when either the burdened or dominant parcel of land is sold.

An easement in gross is for the benefit of a person or organization. Upon sale, the easement transfers with the land. As an easement grants a personal right specifically to the holder, the easement cannot transfer to another individual or entity.

Does a seller have to disclose an easement?

Easements exist through a grant or reservation in the title deed or an easement agreement or implied by law. A seller should disclose all known easements, including those resulting from established agreements with neighbors.

Due to the common nature of easements in real estate, sellers often disclose them. However, as regulations vary from state to state, it’s always worth conducting your due diligence before signing a contract.

Who is the dominant owner of an easement?

Easement law grants a possessory interest in a property that allows easement holders to access portions of a property for specific reasons. But who owns an easement? The landowner keeps the legal title to the property, including the area subject to an easement, but they cannot block or restrict an easement holder’s access. The person or property that benefits from the easement is the dominant estate, while the ‘servient estate’ bears the burden.

What are the three types of easements?

The three types of easements include:

1. Express easements
2. Prescriptive easements
3. Implied easements

A property owner and the individual seeking to use a portion of their property create an express easement through a deed of easement or written agreement. The documentation is recorded in the county’s public records.

Like an easement appurtenant, an easement by prescription allows use, but not ownership, of a portion of land. For a prescriptive easement, a person must show they have been openly, continuously, and regularly accessing a portion of land for a certain period of time out of necessity but without the owner’s consent.

An implied easement is not expressly created in a written easement deed or agreement. Instead, the law infers that the parties had intended to create or transfer certain easement rights.

Do easements have value?

An easement in law is a possessory interest in a property and therefore has a value. It is essential to know the terms and value of an easement when buying or selling a burdened property.

Appraisers calculate the value based on the effect of the burden on the property rather than the easement itself. An easement’s value utilizes comparable property data and considers how the easement’s location, purpose, and use impact the market value of the burdened property.

What happens if an easement is not recorded?

Adverse possession or prescriptive easements are unrecorded and will not show in a title search. Prospective buyers can ask the seller if any third parties have an unrecorded interest in the property, such as easement rights to travel through certain parts of the property. For further peace of mind, buyers should inspect the property’s perimeter to see if any fences, sheds, gardens, driveways, paths, or other structures extend over boundary lines, which may be a sign of unrecorded easements.

Sometimes locating easements, particularly unrecorded ones, can be difficult. Current and prospective homeowners should consult with a property attorney if they have concerns a third party may have an unregistered interest in their land.

Should I buy a house with an easement?

It’s important to know if a house is burdened or benefitted by an easement before buying. You should be aware of any disclosed easements by reviewing the title deed, and you should conduct your due diligence to investigate the possibilities of undisclosed easements.

Once you’re aware of any real estate easements, consider how they may impact your use of the property now and in the future. Evaluate any limitations detailed in an easement deed or agreement that may impede any plans to renovate or expand your home, erect fences, install sheds or inground swimming pools, etc.

Many owners have house easements, some without even realizing it. These easements usually don’t reduce the use, value, or enjoyment of an average home. Consider buying if the house meets your other buying criteria and you’ve done your due diligence. Your dream home might have an easement, but take the time to ensure any applicable restrictions won’t result in costly or disappointing issues down the line.

How to find easement information on a property

Title documents generally detail any rights created via an easement agreement or deed of easement. However, as not all easements need to be in writing, you may be wondering how to find out this information, and the answers will vary depending on the type of easement.

A private easement is recorded in the title deed and will include a reference number. Your county clerk can use this reference number to help you source the original easement documentation from public records.

You can find out more about utility easements, such as a sewer or electrical easement, by contacting the local utility company, county land records office, city hall, or a surveyor.

An easement by prescription may not exist when you initially purchase a property but can be created after a set period of time if a formal easement does not exist to grant necessary access. You can search your state statutes for previous court decisions on prescriptive easements or contact a lawyer.

Property easement laws and regulations differ in every state, and not all easements are in writing or available in public records. Completing a title search will help you find most property easement information.

Can a property owner block an easement?

The owner of a servient property burdened by an easement cannot legally block or obstruct an easement holder’s access. Disputes over rights and proper use can occur when the terms in a deed of easement or agreement do not adequately detail its location, bounds, and purpose. This ambiguity can result in costly legal disputes amongst neighbors and other parties over the proper use of an easement.

Easements are a common feature in residential real estate that allows certain people and companies access to properties they don’t own. An easement does not significantly impact most homeowners on their property, and many are likely unaware of any land easements. However, as an easement can affect the value of a property by restricting developments and potentially influence future buyers’ perception of the exclusive use of the land, it’s essential to understand the legal implications of easements when buying or selling a home.

Due to the variety and complexity of easements, you may decide to invest in obtaining professional advice from a property lawyer before buying or selling your home. To recoup some of the cost of legal advice, you may wish to consider using a flat fee brokerage, such as Richr. By using Richr, you still receive the support, paperwork, and online tools to sell your home, but you save thousands of dollars by managing your online listing.