You’re out looking at homes, and you find THE ONE. You’ve searched for months and you’ve finally found the place you want to call home. The house has everything you need, and there’s a huge yard out back that’s a blank slate and will someday be perfect for entertaining. You can visualize the pergola you’ll build, the overhead lights strung all around, the firepit – and ringing the yard, the beautiful fence that will provide all the privacy you could want. You love outside living, and you can’t wait to throw your first party!
So you write your offer, plunk down your hard-earned cash, sign on the dotted line, and it’s yours! (Yes, that was vastly simplified, but it will do for illustrative purposes.) You get started immediately, building and stringing and fencing merrily away. And when you’re finished, you gaze proudly at the finished product. You’re so happy. The improvements cost you a nice chunk of change, but you’re improving your property, so it must be worth it, right?
A few weeks later you’re ready to send out your first party invitations, when you get a nice letter from your local utility, telling you that they require access to the utility easement running along the back end of your property and coming 15′ into your beautiful yard. The fence you built must be moved – at your expense. Now the yard is too small for your party plans.
If only you’d known going in about this easement, you may not have purchased this home. Your dreams, and your love for your new home, are dashed.
What Are Easements?
So what is an easement? In the case above, you have a utility easement, though there are many different kinds of easements. Utility easements are areas of a property that were designated for use by a utility company when the property was first drawn on a plat. They are areas designed to accommodate overhead electric, telephone, and television lines and underground electric, water, sewer, telephone, and cable lines. If they have an easement on your property, the utility has the right to have access to the area(s) defined by the easement.
Utility easements are for the good of the community. It’s much less expensive to run utilities on straight line than to try to bend them around various property lines. So easements allow utilities to keep costs down by significantly reducing the amount of materials and work hours needed to provide service to a community.
How Do Easements Affect Property Use?
An easement doesn’t necessarily mean that a utility can do anything to your property. For example, they can’t build a fence around their easement area, restricting your access. You still own the property. It just means they have a right to use the easement in a way that benefits the community as a whole, such as installing utility poles or underground lines. But the easement also means that there are things you cannot do as a property owner. Although it is technically your land, if an easement exists, you cannot build on that portion of the property either, including, in the above example, installing a fence. You may be restricted from planting trees or large bushes as well. Or installing a pool. Or doing anything that restricts access to the easement. You may also want to avoid making significant improvements to the easement area, like extensive decorative plantings – if the utility needs to dig to repair a broken line, your beautiful plants could be destroyed without compensation.
Other Kinds of Easements
In addition to Utility Easements, there are many other kinds you may run into. Some of the main types are easement in gross, easement appurtenant, and prescriptive easements.
An easement in gross is like the utility easement – it’s between a property owner and another person or entity, but not involving another specific property. If the owner granting the easement sells, the easement is transferred to the new owner. However, the person or entity receiving the easement cannot sell or transfer the easement to another without the property owner’s consent.
An easement appurtenant is established between two properties – a dominant tenement (the property that benefits from the easement) and a servient tenement (the property that gives the easement). In the diagram below, property B (the dominant tenement) has an easement appurtenant on property A (the servient tenement) because property B’s driveway is built across property A’s land to gain access to the road. These types of easements survive the subsequent sale of the properties and are said to “run with the land.”
A prescriptive easement may be said to exist if a person has been using a portion of an owner’s property for a certain number of years, but the easement must meet certain criteria:
the use must be open and notorious (obvious and not secretive),
the individual must actually use the property regularly,
the use must be continuous for the required statutory period defined by the state, and
the use must be adverse to the true owner (without the owner’s permission).
For example, if Bill owns a property with a pond on it, and Ted has been coming to fish in the pond once a month for the last 20 years without Bill’s permission, Ted may have a prescriptive easement to use Bill’s property for fishing.
So What Does All This Mean?
Easements may never cause a problem, but they can create significant pain and suffering if you’re not careful. Before you purchase any property, your Realtor should help connect you to the right resources to help you determine whether any easements exist and what impact they may have on your rights as a property owner. For example, the title company you use should also be able to find any recorded easements, but you should try to find out as early in the process as possible (i.e., before you submit an offer if you can).
In some cases it may be easy to determine if an easement exists because they have been recorded along with the deed in the local records. Most often utility and conservation easements have been recorded.
Other kinds of easements may be more difficult to track down and verify. Shared driveways, for example, may or may not have a written record. Who is responsible for maintenance and upkeep of the driveway? Plowing the snow? If you’re considering a property with a shared driveway, your Realtor can help you find the right resources to verify what kind of agreement is in place. It may be just a handshake agreement, or it could be documented somewhere. If it’s not documented, you’ll have to decide if you’re willing to take the risk.
The point is that you should always try to find out as much about a property you want to buy as possible. Once you think you’ve found THE ONE, make sure your dreams and vision can come true. Work with the right resources to find out about any easements that may exist and how they affect your property rights.
If you have any questions about easements or anything else related to real estate, feel free to contact me! Happy hunting!