Have you ever stumbled upon your dream property that you would buy in a heartbeat, only to discover that someone else has the right to use a portion of your land? Yes, this devastating scenario can happen and often puts people off from buying an otherwise excellent property.
This situation occurs because of a legal agreement known as an easement.
If you are new to homeownership or real estate, you might be wondering, what is an easement? Simply put, an easement is an agreement where the homeowner grants a third party the right to use the property or a part of the property for a defined purpose in exchange for a fee.
Do you want to know more about this legal agreement? Continue reading and learn comprehensive details about the types, creation methods, and how it changes the value of a property.Get A Free Mortgage Quote Now
Types Of Easements
There are three main types of easements:
- Easement Appurtenant
- Easement in Gross
- Easement by Prescription
This type of easement revolves around two neighboring properties. The keyword here is “appurtenant,” which means accompanying something. An easement appurtenant is a permanent agreement that stays with the property transferred to the new homeowner with the title.
Easement In Gross
Unlike an easement appurtenant, an easement in gross is not attached to the property. Rather, the agreement grants the right to access the property to an entity, for example, a utility company.
So the easement is in the name of the individual or the entity. While an easement appurtenant requires transfer to the new homeowner, an easement in gross does not change with the property owner.
Easement By Prescription
Easement by prescription is a very interesting type of agreement since it involves no formal legal agreement. Here, an outside party uses the property for a long time without formal permission; access becomes legal once a certain time has passed.
The length of time can vary in states, which is why it is important to clearly mark boundaries on your property to protect it from malicious intent. However, it is not always intentional.
Additionally, it is not as easy as it seems. Certain requirements must be met if you want to establish a prescriptive easement. For example, the use of the property cannot be secretive. It should be open and public.
Also, the time period should be continuous without interruptions. Typically, the time ranges from 5 to 20 years, depending on your state. Let’s say you used the property for two years and then stopped for the next three years. Eventually, you could reaccess the property after a year. This does not qualify as a continuous timeline.
Creation Of Easement
Easements can come into existence through various means, such as:
These are legally binding agreements between two parties. They can be established through deeds or contracts where the specifics of the conditions, rights, and responsibilities are predefined to prevent any issues.
Implied easements help preserve historic properties. However, these are mostly casual and require no legal documents. For example, a house built in the 1800s may have an implied easement that prevents the homeowner from making any modifications that may impact its historical significance.
Easement By Necessity
Some easements occur because a third party has no choice but to use a particular property because of necessity. Although an implied easement can also work for the same purpose, this legalizes the necessity.
Let’s say a person needs to use their neighbor’s private road to access their own property. If they know each other well, an implied easement could be enough. However, if the owners of the properties are not on good terms, it would be wise to settle for an easement by necessity since it legally binds them.
Ending An Easement
Ending an easement can be challenging since some are more easily removed than others. Remember, you cannot disrupt an easement while you are trying to terminate it.
For example, an easement in gross can only be removed once the individual dies or agrees it is no longer necessary. If the easement was created before you bought the property, you must court order to terminate the agreement.
As for other easements like appurtenant or prescriptive, you require a written statement from the easement holder that both parties agree to nullify the easement. Of course, the other party is only sometimes agreeable, and you may have to go to court to resolve the issue.
Rights And Limitations Of Easements
When you are involved with another party under a contract, there are certain rules and responsibilities that both parties must abide by.
The servient estate (the property burdened by the easement) needs to understand that the dominant estate (party benefiting from the easement) has the authority to access the property as specified in the legal documents. However, this does not mean the easement holder can do as they please on the property. For example, if the easement holder has the right to a shared driveway, they are also responsible for the wear and tear.
Similarly, the property owner must respect the easement holder's right and should not interfere as long as they are following the rules and respecting their limitations. They can obstruct the easement or take any action against reasonable and rightful use of the property. That said, the property owner still controls the property, except for the specified rights.
Understanding the dynamics can help establish a harmonious relationship so the two can coexist.
Real World Examples
You would be surprised to know that you have multiple examples of easements around you. Yes, easements play an active role in your everyday life.
Let’s look at a few real-life examples of easements for better understanding.
Easements are common in commercial settings. Consider a shared parking lot or access roads. Multiple businesses located on the same avenue or in a mall may share parking spaces or have designated spaces for utilities, storage, or managing deliveries.
Another example is agricultural easements which are prevalent in rural areas. These easements are a way to protect farmland from development so future generations can continue to use these open spaces for agricultural purposes.
Easements And Property Values
Whether you are seeking to create an easement or considering buying a property with an easement, you would want to know how an easement can affect the value of a property. It is a genuine concern, of course, and the answer is that it can vary, depending on certain factors.
You will observe that some easements have little to no impact on the property. Other times, the impact of an easement can be significant.
Take it this way:
An affirmative easement that provides an advantage, such as a lakefront example lakefront access, can increase the value of a property. In contrast, if it is a negative easement and prevents indulging in certain activities, for example, limiting the development potential of a property can decrease the property value.
Another crucial factor is the location and size of the property. So, sharing a larger portion of a property due to an easement can adversely affect its value. At the same time, restricting a portion of a large property will have a minor impact on the value.
To avoid legal complexities, it is best to contact a real estate attorney who can help you figure out the nitty-gritty of a particular easement. They can assist you in understanding the rights and responsibilities involved in an easement and help you navigate through the landscape.
Legal advice regarding easements is especially important if the agreement is legally binding. No matter which side of acquiring or granting an easement you are on, it is critical to lay out the specifics and have the terms clearly defined in a written agreement. This helps prevent any future disputes and conflicts.
Additionally, your attorney will protect your rights, and the agreement is as per your intentions.
Furthermore, it is imperative that before joining an easement, you are well-versed in the local laws and regulations related to an easement. Easement laws can differ according to jurisdiction, so it is important to know the specific requirements and limitations procedures necessary in your area.
Final Thoughts On Easement
Now that we have answered your question: “What is an easement,” you would know it is not simply legal jargon. There is much more to this agreement.
It holds the key to shared spaces, property rights, and a delicate balance between property opener and easement holder.
By understanding the intricacies of an easement, you can now make an informed decision about a property and ensure that you protect your interests.
So, whether you are purchasing a property with an easement or establishing an easement, understanding the types, creation methods, limitations, and the rights and responsibilities involved will help you determine the property's value.
Remember, easements might seem complicated, but they are important to property rights and shared spaces. By confidently understanding and embracing easements, we can ensure harmonious coexistence, property rights are preserved, shared spaces are respected, and communities can grow and thrive.Get A Free Mortgage Quote Now