As you go through the home buying process, you may come across the term and wonder, “What the heck is it anyway and why should I care about it?” Easements are absolutely something you should care about. Let’s start at the beginning.
What is an easement in real estate?
An easement grants someone the right to cross or use someone else’s land for a specified purpose. Even if you own the land, it means that you cannot control this other person from using the land for the purpose specified in the easement. It exists regardless of who owns each property. So, if you’re searching for a new home or just thinking about buying a home, be sure to check with the seller to see if any easements exists. If they do, they’re not going away just because you now own the home.
There are three main types of easements: in gross, appurtenant, and prescriptive. The names are a bit confusing so keep reading and we’ll explain what each one is.
Easement in Gross
With an easement in gross, the property is the only consideration. Commonly, it would be a public utility line which goes through the property. Let’s say there’s a public water line running through your property and an easement in gross exists. If there is a leak in the water line, a maintenance crew could legally come and dig up your yard to repair the water line. All are required to be recorded as a public record. Although it doesn’t seem fair for someone to come dig up your yard, it’d be even less fair if you had no way of knowing it was a possibility.
An easement appurtenant is more commonly known as a right-of-way easement. An easy example of this is allowing a neighbor to drive across your property to reach their property. It doesn’t matter if it was made 30 years before and neither neighbor lives there anymore, the easement still exists.
If you’re buying a house where an easement appurtenant exists, talk to the seller about how it has worked over the years. Then, talk to the neighbor and find out how they perceive it. There could be little details, like who mows the lawn where the easement is, that could be important to know.
Unlike an easement appurtenant, a prescriptive easement occurs without the landowner’s permission. An easy example of this is if someone builds a fence 3 feet onto your property line. Now, it doesn’t automatically go into effect. In order for it to go into effect the action must be:
- Open, so not done in secret.
- Notorious, so as the homeowner you must be able to easily see that the action has occurred.
- Hostile, so without consent.
- Continuous, so for an extended period of time as determined by state law, typically between 5-30 years.
To finalize a prescriptive easement, the “hostile” party must file a claim proving that they have fulfilled all requirements in a prescriptive easement. While you most likely won’t stumble upon a prescriptive easement, it’s important to be on the lookout, because you never know.
Making it easement-y
Hopefully, this has answered several of your questions about easements. If you’re buying a house, make sure to ask the seller if any exist on the property. Call the utility company and/or look up public records, if the seller isn’t sure. Knowing what easements exist on the property you’re buying is important, because your brand new parcel of land may not be 100% yours. A good real estate agent should be able to guide you through this process.
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