So you found out the property you are trying to buy has an easement on it. Now, an easement in real estate is not necessarily a good thing or a bad thing. It all depends on your specific situation at hand. Continue reading to get all the information you need to know about easements. Remember though if you have any questions or concerns about the easement on the property you are attempting to purchase, it is always best to contact your real estate agent.
What is an Easement?
An easement in real estate allows a person or organization the legal right to use someone else’s land, but only when it is necessary. Many easements constrict how and when its holder can use the land at all. For example, utility companies often must utilize easements in order to complete the work they are required to do. If an electrical pole that is on your property needed maintenance done on it, an easement on your property would allow the utility company to come onto your property without your explicit permission and fix the problem. Utility companies are not the only ones able to hold easements though. Private citizens, or even the general public may utilize them as well. It all depends on the type of easement that is on your property.
How Will You Know if a Property has an Easement?
Sellers are legally required to disclose the fact if an easement is on the property they are trying to sell. So you should know well before closing if the property you are attempting to buy has an easement on it. If you are buying a bank owned home though, you will need to do some research on your own. You are able to contact the city and find out if any property being sold has an easement on it, so it is always best to double check if you have any suspicions.
Regardless of if you are trying to buy from the bank or a seller, it is always a good idea to understand exactly what type of easement is on the property, the terms of it, and where it is. For example, some easements remain if a new owner buys the property, while others don’t.
The Different Types of Easements
There are a few different types of easements in real estate that all have slightly different terms to them. The specific characteristics, and property rights each allows for are listed below. It is important to note though that easements can be classified as multiple different types at the same time. For example, it is likely that an easement would be classified as both private, and appurtenant.
Appurtenant vs. Gross
An easement is classified as appurtenant when it benefits the property it is attached to. They are considered to be apart of the formal ownership of the land, and are transferable between owners. For example, say Mary must drive on apart of Allen’s driveway in order to access her own driveway. Then an appurtenant easement would be put in place. Thus allowing her to the limited use of Allen’s driveway in order to access her own. Mary could not install a basketball hoop on Allen’s driveway for her kids to play with though. Her use of his driveway would solely be limited to her ability to access her own driveway.
An easement in gross does not transfer between owners of the property. This type of easement only benefits a specific individual or entity. For instance, say John grants Sarah the ability to cross over his land in order for her to easily access the lake. This easement would only apply to Sarah, and it would only apply to her as long as John owned the property.
Public vs. Private
There is a distinct and simple difference between public and private easements. A public easement allows for anyone to access the part of your property the easement applies to. This type of easement would be in place for example if a sidewalk or public road crossed your property. A private easement would allow someone such as your neighbor the right to be on your property if it was necessary. These easements are often transferable between owners, especially when they are public.
Affirmative vs. Negative
A majority of easements that have been granted allow something to happen, which are considered affirmative. There are some in existence though that restrict something from happening, which are considered negative. For example, there could be an easement in place that does not allow you to plant trees that would cover your neighbors solar panels.
Your Property Rights when an Easement is Involved
When your buying a property with an easement on it…
In almost every case if you’re buying a property with an easement on it you must abide by the terms of that easement. Easements are not put in place in lightly, and in many instances they are intended to be permanent. You are able to use your property however you wish. You just must also allow the holder of the easement to use your property in the specific way they have been granted to do so.
When your property relies on an easement on someone else’s property…
For instance say you fall in love with a house, but you must use part of the neighbor’s driveway to get to yours. You will probably be pleased to find out that an easement is in place allowing you to use part of your neighbor’s driveway. If the property you intend to buy relies on an easement though, it is highly recommended to investigate it thoroughly. Ensure you understand all the terms of the easement before going forth with buying the property. It is also a good idea to talk to the neighbor too. Be open and friendly about the rules of the easement to get everyone on the same page from the beginning.
Challenging an Easement
Easements can only be challenged through the court system, and as stated earlier they are very difficult to overturn. Nobody wants to go through a court battle in the middle of trying to buy a house either. So many people choose to not challenge an easement at all. If you can get the easement holder to terminate the easement on their own though, it may lead to a smoother termination process. This would also be the case if the easement in question has a natural expiration date, which would be stated in your deed.