What is an Easement in Real Estate and What Are the Facts to Know About?

Posted by Excelsior Realty Team on November 29, 2023

Knowing what an easement is can safeguard your real estate investments and rights. With a homeownership rate of approximately 66% in the U.S. as of late 2023, the idea of easement is pivotal to understand. Why? One reason is that owning property is at the core of the American dream. Holding those keys comes with understanding, respecting, and abiding by the rights of easements.

So, what exactly do we mean when we talk about 'what is an easement in real estate'? Simply put, it's a shared use agreement on your property deed that you need to be aware of and follow. In this article, we'll navigate through easements to give you a definitive idea about what they do. We will discuss how they connect private lots and set the stage for shared access rights or utility routes. This article will help you separate facts from myths about property use agreements.

What is an Easement in Real Estate?

In real estate, an easement grants someone the right to use a property owner's land for a specified purpose. It's not ownership but rather legal permission, such as allowing utility companies to use electricity lines across private property. Easements can serve practical needs or ensure access to another person’s property.

The benefiting side is known as the "dominant estate," while those granting usage are termed the "servient estate." Specific laws define these rights and their time frames. Types of easements include utilities, access (like driveways), and emergency routes.

A community's properties intertwine through easements, whether passing through your neighbor's yard to reach yours or laying pipes underground.

Easement in Real Estate


What Does an Easement Agreement Do?

Building on the essence of an easement, let's delve into its blueprint: the easement agreement. This pact is your official passport to legally use someone else’s land. It’s a clear green light spelled out in ink and recorded publicly.

New owners of properties inherit these agreements. They can't just erase or ignore them. Picture a property handover with strings attached; new buyers must honor those existing easements. Legal agreements ensure access is always granted, so they must be followed through.

Think of driveways shared by neighbors; often, no paperwork backs their daily routine of coming and going. But there is peace when the law writes down what people do not say, protecting rights over time and making things clear where there were once assumptions.

How Does an Easement Work?

Now, let's break down how an easement functions in practice. Easements are tailored agreements between property owners and other parties, usually involving compensation for usage rights.

Each easement caters to its script; terms are crystal clear. Boundaries are drawn, purpose set, and all spelled out within the document edges. There’s also an exit clause. It’s a bow-out point solidly placed in the hands of the landowner.

Know this: those pre-set rules will stick around even when property ownership shifts. They're part of your new home turf. Buyers must be diligent in digging up any hidden strings attached to their dream plot before signing off. Unearthing these details as early as possible prevents future headaches.

What Are the Different Types of Easement?

When delving into real estate, understanding the various types of easements is crucial. Easements play a pivotal role in shaping how properties interact within communities. Let's explore the different facets of easements, shedding light on the most common types encountered.

Easement Appurtenant

An easement appurtenant is a legal concept intimately tied to real estate. It bestows the right to use another person's property for a specific purpose. This easement establishes a connection between two properties:

  1. The servient tenement, granting the easement.
  2. The dominant tenement, benefiting from it.

Imagine having a shortcut to a public park or a designated access route for utility services. Easements appurtenant are unique in that they are linked to the property itself, enduring through changes in ownership. They are typically outlined in the property deed and are not easily altered. These easements can be established through written agreements or court orders, ensuring clarity in property usage rights.

Private Easements

Private easements come into play when a property owner grants access to their property, often for maintenance purposes or other temporary needs. These easements can be created and even sold, allowing the property owner to negotiate terms with the requesting party. While granting temporary access might not be problematic, long-term private easements can have implications for future homeowners. They must be documented on the property title.

These agreements might impose restrictions on the property owner's use, constituting what real estate attorneys refer to as encumbrances. It's essential for property owners to carefully consider the implications of such easements on their property value and future use.

Conservation Easements

Conservation easements are agreements designed to preserve the natural or cultural values of a piece of land. These restrictions prevent the disturbance of specific areas, such as wetlands or wildlife habitats. Property owners willingly relinquish some land-use rights in exchange for protection from development.

Buyers inheriting a property with a conservation easement must adhere to the stipulations outlined in the agreement. The purpose is to maintain the passive benefits of the land, often limited to activities like walking or hiking. Conservation easements contribute significantly to environmental preservation and sustainable land use.

Moreover, conservation easements are increasingly used for tax planning. The IRS is auditing these easements, with over 750 cases backlogged in the Tax Court.

Utility Easements

Utility easements grant access to utility companies for the maintenance and provision of services like electricity, water, sewage, and cable. These easements are typically established through state or local laws and are crucial for ensuring a functioning infrastructure in residential areas. While homeowners benefit from uninterrupted utility services, these easements may restrict certain activities on the property to maintain utility equipment.

Understanding the limitations imposed by utility easements is crucial for property owners, as it may influence landscaping decisions or construction plans. Balancing the needs of utility companies with property aesthetics becomes a key consideration.

Prescriptive Easements

Prescriptive easements arise when a court grants a legal right based on the previous use of another person's property. If someone consistently uses a portion of your land without permission, the court may establish a prescriptive easement, allowing continued use. This can apply to scenarios like repeated pedestrian access or parking.

While this may seem unfair, it underscores the importance of property owners actively protecting their rights. Promptly addressing trespassing issues, such as building a fence or explicitly denying permission, can prevent the establishment of prescriptive easements.

For example, suppose Rony had bought a property without access to a public road. However, he had been using his neighbor's private gravel road to reach a public road for ten years. And the owner of the private road didn’t object to it. In such a case, a court may grant Rony an easement by prescription.

Preservation Easements

Historical preservation easements are legal agreements that ensure the preservation of significant property characteristics. Property owners agree to maintain the historical aspects of their property, and these agreements typically do not expire. Restrictions on property changes are recorded in public records, and organizations often enforce these restrictions.

Property owners entering into historical preservation easements play a crucial role in safeguarding cultural heritage. While these agreements may limit certain modifications, they contribute to the collective effort to preserve historical landmarks. One of the most famous examples of preservation easements is the Oddfellows Building in Atlanta.

Easements by Necessity

Easements by necessity come into play when another party needs to cross your property because no alternative access is available to their land. Common in rural areas, these easements ensure that land remains productive by allowing essential access. Property owners may be unable to prevent the establishment of easements by necessity. That’s because denying access would be considered an unnecessary burden on the neighboring land.

Understanding the necessity and implications of such easements is vital for property owners, particularly in areas with limited alternative access routes. Balancing individual property rights with the broader goal of maintaining land productivity is a key consideration.

How to Tell if There is an Easement on a Property?

Curious if an easement is tied to a property you're eyeing? You can start doing some research with a title search. But be wary, some easements can be difficult to find as not all make it onto the record.

Think of agreements or long-term use as invisible lines. It is not written down, but these permissions hold a lot of weight. Your dream home might carry these ties without being written down anywhere.

Even if they are rare, don't assume anything; ask upfront about any potential strings attached. A savvy real estate agent should tackle this query head-on. Otherwise, he may recommend peering deeper into history books via legal counsel for ultimate peace of mind.

What Happens if Easement is Not Complied With?

Overstepping boundaries with easements can potentially lead to a legal battle. People who have easements must be allowed to use the land as agreed by the property owners. Block that right, and you're inviting trouble—think penalties or court time.

Yet the land's still yours to enjoy; only the signed-off path is shared space. So, what’s the rule of thumb? Don't mess with its intended use without expecting pushback from the holder.

Maintenance falls under the holder’s to-do list. It keeps things running smoothly without encroaching further on your territory. If upkeep slips, causing disuse, strike up a conversation about cutting ties legally. It’s an option when an agreement peters out naturally.

Ending Thoughts

Understanding easements in real estate is crucial for property owners and buyers alike. Easements grant specific usage rights, shaping how properties interact within communities. From easement appurtenances tied to property deeds to conservation easements preserving natural values, each type plays a distinct role. Private and utility easements offer unique challenges, while prescriptive and historical preservation easements add legal dimensions. Easements by necessity, common in rural areas, ensure land productivity.

At Excelsior Realty, with years of experience and a deep understanding of local market conditions, we navigate the intricacies of easements for you. Whether you're buying or selling, our expertise ensures a seamless process, safeguarding your property rights. Trust Excelsior Realty for a smooth real estate journey.