An easement is an interest in land or real estate property that grants another person or entity the right to use land within the easement
Easements in gross involve one parcel of land and are usually set aside for the use of local authorities and utility companies
Easement appurtenant involves two parcels of land, one of which is landlocked
When you’re buying land or property, the seller should disclose any easements on it
An easement is an interest in a real estate property or parcel of land. If you grant someone an easement, you are giving them the right to use your property in some way, without giving them actual ownership over it. Easements can be affirmative, which means they authorize the use of land, like allowing your someone the right to fish in the lake on your property. Negative easements, on the hand, limit use of the land, like a conservation easement that restricts you from removing trees or building a tall structure that would obstruct scenic views.
For many people, an easement means that a part of their land must be available for use by civil authorities. That means you need to let people onto the easement to make necessary repairs to municipal structures like water mains, or keep the sidewalk in front of your home open for everyone’s use.
When you’re buying a house, you might find out that the property has an easement on it. Essentially this means that someone other than you could have access to the land. This isn’t necessarily a bad thing. For example, utility companies typically hold easements in case they need to access pipes or cables. But in other situations, an easement might prove burdensome, such as when someone must cross your property to reach theirs. We’ll talk about different types of easements, how they’re created, and how property owners and homebuyers can prevent and remove them.
Types of easements
Affirmative and negative are just two ways to categorize easements. They can also be public or private. Public easements grant access to the public — a road easement, for example. Private easements are held by private individuals or companies.
Other than that, here are the most common ways that easements would be described:
1. Easement in gross
Easements in gross benefit the person or entity who is granted the easement (the easement holder). Only one parcel of land is involved in an easement in gross and utility easements fall under this category.
This is how an easement in gross works: A gas company may be granted an easement that lets them dig up the part of your yard that falls within the easement to access the pipes that run across your property. Or a cable company may hold an easement to install a power line across your property. The utility company is the easement holder and it reaps the benefits.
Another example of an easement in gross might be if a property owner grants someone an easement to hunt on their property. The easement benefits the neighbor who would otherwise not have the legal right to do this. Likewise, a conservation easement may be set up to preserve land for the use of the government or nonprofit, such as a nature preserve or historical site.
Easements in gross follow the easement holder (whoever the easement benefits). They can’t give away or sell the easement to someone else. Using the previous examples, when you sell your property, the new property owner will have to honor the easement that let your neighbor hunt on the land. It will only terminate when the neighbor dies, and since the easement in gross is not transferable, he cannot pass the easement to someone else.
While easements in gross follow the person, commercial easements in gross tend to be transferable. That means that, for a utility easement, the utility company can transfer the easement to another one if they ever stop servicing the area.
2. Easement appurtenant
Unlike the easement in gross, an easement appurtenant involves two parcels of land. This type of easement benefits one parcel of land, the dominant tenement or dominant estate, and burdens the other, the servient tenement or servient estate.
Here is a very common example of easement appurtenant:
Let’s say you live in a residential community with a beach. In order for the residents to access it, they must pass through your backyard. An easement appurtenant would grant your neighbors the right to walk on your property in order to get to the beach.
-Your property is the servient estate, since it is burdened from the easement. -The beach is the dominant estate, since it is benefiting from the easement. -Your easement is attached to your property, and it is reserved for use by your neighbors.
Easements appurtenant remain with the land, or “run with the land.” That means after you sell your house, the next property owner will also be subject to neighbors walking across property to access the beach. If you get new neighbors, they will also be able to benefit from this easement.
3. Prescriptive easements
Prescriptive easements can be either easements appurtenant or easements in gross, but they’re not legal or “official” easements. They are defined based on how they’re created, which is usually in a hostile way, like trespassing. We’ll discuss how prescription easements arise in the next section.
How to create an easement
Easements are established in writing, usually as part of a deed. The documents must be signed and include the name of the person issuing the easement and the person who is benefitting from it. This is called an express easement.
But easements aren’t always documented. They may still be created by the court in the following circumstances:
Easements can be implied. This often happens when a property with an easement on it has been broken up and sold to different owners. The resulting parcels of land will have implied easements on them due to pre-existing use.
Easements can also arise by necessity. Landlocked properties usually have a driveway easement, a common example of easement by necessity. For example, someone might need to access your driveway to reach their home.
Another way to get an easement is by just using the land without permission. This is called adverse possession. Let’s say your neighbor parks in your driveway once and and keeps doing it for years. By occupying your land illegally, they can actually gain ownership over it. If you fail to try and stop them, the court may recognize this concession and simply give your neighbor a prescribed driveway easement — the legal right to your park in your driveway as they’ve done for years. This is a prescriptive easement.
A similar type of prescriptive easement is when your neighbor builds a fence on your property, whether intentionally or not. If you don’t challenge this encroachment, you might create a prescriptive easement.
In order for trespassing to be considered adverse possession the act must be hostile, actual, open and notorious, and exclusive and continuous for a certain amount of time. These are legal terms, so you should consult with a lawyer for more information on whether someone’s actions qualify as adverse possession.
What easements mean for homeowners and homebuyers
Easements grant someone the right to use property, so if you're buying a house, you’ll want to know if there are any easements associated with it. Homebuyers have a right to know about the certain easements — the seller must typically disclose them. Keep in mind that if you’re buying a foreclosure home, this information may not be provided.
A title check can help reveal easements on the property you’re interested in. Talk to a real estate attorney for more information on easement laws in your area.
If you’re a homeowner, you are probably most concerned with prescriptive easements. Take care to inspect your property and make sure your neighbors aren’t encroaching on it. You can also offer written permission for them to use your property. This way you’ll still be in control of your land, and you limit their ability to ask the court for prescriptive easement.
If you do suspect adverse possession happening on your property, then contact law enforcement and a lawyer.
How to remove an easement from your property
There are ways for property owners to remove an easement, whether you are the one benefiting from the easement or not. The termination of an easement, no matter how you get it, should be registered at the local recorder’s office. You may have to pay a fee, but getting the termination on record will help in case there are any issues with the title in the future.
If the easement has an expiration date you can just wait it out. With easements in gross, however, you might be waiting a while, since they only expire when the easement owner dies.
You can simply terminate an easement, if you created it by registering it on the deed In the opposite situation, let’s say you’re the servient estate being affected by an easement granted to your neighbor, then you might try talking to them and asking them to release their easement rights.
If that fails, you could just try buying them out of their land. Merging the two properties under one owner will cancel the need for the easement.
Another way to remove an easement is by abandoning it. Don’t follow the terms or prevent the easement holder from their rights. This is essentially following the prescriptive easement playbook — if no one follows the terms of the easement and there are no complaints about it, then it might as well be removed by the court. Sometimes a land owner will pay the property taxes on the easement area, to demonstrate they are serious about claiming the property as your own.