What is an Easement in Real Estate?
An easement is one of the many types of encumbrances that can be found on real estate properties. Like all other encumbrances, easements limit the type of activities that can be carried out on a property by its owner.
Since they occur very regularly, it is important for any real estate scholar or investor to understand what easements are all about fully. This article explains in detail what easements are, how they work, and the different types of easements you can come across in the real estate industry.
What is an Easement?
An easement is a legal term that refers to the lawful right a person has to use a property they do not own for a specified purpose and time. It is a nonpossessory property interest that gives the easement holder legal rights to use another person’s property, usually with the property owner's knowledge.
Easements can be granted to government agencies or utility companies to ensure public services are accessible to all. Additionally, a neighbor or private party may decide to assist another neighbor or private party by granting them usage of their land for certain reasons. In some cases, the easement holder can pay compensation to the property owner for the use of the property.
Although most easements are recorded in public records and included in the property deed, the property owner possesses the title to the property and remains its rightful owner by law. Common easements may include road access, power lines, TV cables, and utility access.
How Does an Easement Work?
Easements influence a property owner’s rights to use their property freely, and since the easement holder has legal rights to a property, the property owner is not allowed to infringe on those rights. For example, if people have to pass through a property to access their homes, it would be unlawful for the property owner to erect structures that obstruct the path in any way.
An easement is a mutual agreement between the property owner and the person requesting the easement; therefore, the property is utilized within guidelines that are explicitly outlined in the easement agreement. These agreements are sometimes transferred during a property sale, and the current owner has to keep up with them.
Under certain circumstances, an easement can be terminated by the property owner with the support of the law. This can either happen if the easement is abandoned or expired or if the reason for the easement no longer stands.
To completely understand how an easement works, here are several important terms that you need to be aware of:
Ingress and “Egress
The right of “ingress” is the legal right to enter a property, while the right of “egress” is the legal right to exit a property. These rights are granted to individuals through the issuance of an easement and can be exercised regardless of the type of property.
The rights to “ingress” and “egress” can come to be of unique importance in situations where a property owner risks trespassing onto the properties of others each time they enter or exit their property.
Dominant Tenement and Servient Tenement
When an easement is issued based on providing access, the two parties involved are usually the owner of the “dominant tenement” and that of the “servant tenement.” The property which an easement falls on is the “servient tenement” while the property that benefits from the easement is referred to as the “dominant tenement.”
What Are Other Types of Easements?
There are different kinds of easements, each depending on the conditions and specifics of the easement agreement. Below are detailed explanations of the most common types:
A prescriptive easement is an easement that is acquired through adverse possession. This type of easement is established when an individual openly uses a property for a continuous and uninterrupted number of years without the owner’s permission.
This easement is centered around the long-term use and enjoyment of a property. Therefore, a prescriptive easement can be legally granted on this basis even if the property owner disputes the use of the property by the other party.
A utility easement is an easement that gives utility workers the right to access infrastructure located on private property. Utility easements come with restrictions and can be very inconvenient for the property owner. Without these easements, utility companies may find it challenging to provide services for everyday lifestyles, such as pipelines and sewers.
When a utility easement is initially granted, the existing owner will often be paid some compensation. However, subsequent property owners are usually not entitled to receive compensation of any form.
“Appurtenant” is a legal term that means something that belongs to a larger body. Therefore, an easement appurtenant is a type of easement that is permanently attached to a property and not just present for the short term. Since it is permanent, it is usually transferred to a new owner along with the property title.
Easement in gross
An easement in gross is an easement that is attached to a person or an entity and not to the property itself. This easement is considered valid throughout the life of the burdened property owner but may become void if the property is sold.
An easement in gross is often granted to utility companies, permitting them to construct public infrastructure on private property. Other examples can be when a property owner allows a person to use their property for hunting.
Are Easements Bad?
Easements are most of the time granted to provide improvement and solutions to situations. However, while they do this, they also limit the owner’s use of the property, which is why some people might consider them bad or uncomfortable.
Whether easements are bad depends on the property owner's or buyer's preferences. Many property owners wouldn't want to have limited use of their property, while others wouldn't mind as long as it is justifiable. Therefore, general feelings towards easements are mixed.
The best thing to do as a prospective property owner is to find out if there are any easements on a property before buying it. If there is one, you might want to consult with a professional to fully understand the agreements and conditions of the easement, after which you can decide if you want to purchase the property or not.
Final Thoughts on Easements
An in-depth understanding of the concept of easements is important in knowing your rights, responsibilities, and the limitations you stand to face with them.
You should know that asides from limiting your rights as a property owner, easements can also significantly impact the value of a property. Therefore, it is important to seek professional help before making any agreements or purchases.
TL;DR: An easement is a form of encumbrance on a property that grants passage to another party through the property. For example, two houses that share the same driveway. The house in the back can use the front house's property to access their own home.