When you purchase real estate, you expect to have certain rights associated with the benefits of ownership. You should be able to use your land for a variety of purposes without having to ask for permission (although that’s not always possible) or step on anyone’s toes. Additionally, it’s natural to assume you have exclusive rights to your property. Unfortunately, that’s not always the case. Today, we’ll discuss one of the more common problems that arises in real estate law: easements.
What is an easement?
Essentially, it’s the right to use another person’s property or the right of someone else to use your property. Granted, it does have to be for a specific purpose—it’s not an unlimited power—but it’s a legal right that isn’t affected by the transfer of ownership from one person/party to another. Thus, even if the easement was created several decades and owners prior, it could still encroach on your plans for the property today. If you have a good title company during the initial real estate transaction, you should be aware of any existing easements before you finalize the sale. That way, you can decide whether or not its limitations may be a deal-breaker.
Why would my property have an easement on it?
Well, that really depends. There are a variety of easements in existence, all for different purposes. The most common is usually given to utility companies, or the city/town that manages the utility. It allows the named entity to run power lines, pipes, lines, etc. over or under your land. For the most part it doesn’t affect your day-to-day use, but they do have access to the easement 24 hours a day should such entry be necessary. Utility easements are usually easy to discover, as they’re explained in writing and accessible through your deed or previous public records.
After that, it can get a little more complicated. With private easements, a previous owner has (generally) sold the easement to another homeowner or company. The reasons vary wildly, from shared use of a driveway to running pipe or sewer lines to a neighbor’s new construction. With the advent of solar power, there can also be easements that restrict blockage of direct sunlight, or provide access to panels. The good news is that since it’s an official transaction, you should receive a copy of the easement documents before you acquire the property, so you will know how it limits your development.
Even if there’s no written record of an easement existing, there could still be one of two types present. First, an easement of necessity arises when someone needs to cross your land consistently for a lawful reason. Such as if the only access your neighbor has to his/her property is through yours. In this case, you can’t legally interfere with their ability to use your property, despite the fact that you’re the owner. Second, a prescriptive easement can also arise if someone uses your land (or your previous owner’s land) “openly and continuously” for a long period of time. If you (or the previous owner) did nothing officially to block this use, then the person in question has essentially created his/her own easement. This is similar to the concept of adverse possession, but with a few key differences. You can allow someone to use your land without giving them an easement by supplying them with written permission. Once a prescriptive easement exists, it can be hard to prove or disapprove without a paper trail. Harder still is overturning it.
Can I remove an easement?
If at any point you find yourself in a dispute over property boundaries, it’s best to consult an experienced real estate attorney—like those at The Law Offices of Kirk Halpin & Associates, P.A. Because easement rules and regulations vary so much by state, you want to make sure your advisor is familiar with the local laws. Additionally, handling the matter through a third party is a much better idea than trying to intervene on your own. After all, because the other person(s) does have legal access to your property, if you attempt to prevent them from passing through, you could actually be court-order to stop and sued for damages beyond that. Thus, the easiest way to deal with an easement is to learn about it before you even settle on a property. If you do your research and consult our knowledgeable team, you can decide how to handle the situation before anything is finalized.