Law
Fact Checked

What Is a Public Easement?

Alexis W.
Alexis W.

A public easement is a special type of property ownership. When an easement exists on a piece of land, the owner of that land must permit others to use the easement for the stated purpose. If the easement is a public easement, the person who owns the land has to allow members of the public to access a defined area of his land for the reasons stated in the easement.

There are numerous forms of land ownership within the United States and within most other common law states. Most people who own land have a fee simple absolute. This is the simplest and most complete type of property ownership. A person with a fee simple absolute on a piece of land can do anything he wants with it, as long as he doesn't violate other laws.

An easement requires a property owner to allow public access to a limited portion of land for a stated purpose..
An easement requires a property owner to allow public access to a limited portion of land for a stated purpose..

An easement, on the other hand, is a much more limited type of property ownership. An easement is a non-possessory interest, which means that if a person is granted an easement, he does not own the land and cannot use it at will. When the easement is granted, it will stipulate a specific purpose that the portion of land can be used for.

For example, assume that Mr. Smith owns a piece of property. That piece of property lies between a neighborhood of individuals and the public sewer lines. The local government may wish to run sewer lines through Mr. Smith's property.

In that scenario, the local government could request a public easement to run the sewer lines. If Mr. Smith gave his permission, then the state could draw up an easement contract or land deed stipulating that the public has the right to run the sewer lines through that land. The easement would be limited though, by the stated purpose. This means the state could run sewer lines on Mr. Smith's land because of the public easement, but it could not also run power lines on the same plot of land because power lines were not stated as a right granted by the easement.

Once a public easement is granted, it becomes a part of the land on which it is based. If, for example, Mr. Smith wanted to sell his land, he can no longer sell a complete 100 percent ownership interest in it. He will sell the land with the public easement attached. Often, individuals, including the government, who want an easement on someone else's property will pay for the easement, although sometimes owners will grant an easement for free.

Are Easements Public Property?

An easement is an agreement that grants someone else the right to use your property for a specific purpose. However, it does not transfer ownership of any part of your property, nor does it restrict your use as long as you don't infringe upon the other party's rights.

Private and Public Easements

Some easements are private, meaning they are granted only to certain individuals, such as a neighbor. A public easement, on the other hand, allows access for the general public. If, for example, you live next to public forest land, and the trail used to access the land passes through your property, a public easement would allow anyone to use the trail.

In either case, an easement is considered non-possessory. This means that, while an individual or the general public may be allowed to use your land, it remains your private property. The other party has no rights to it other than those spelled out in the agreement.

Care and Maintenance

The owner of the public easement is responsible for maintaining it. In the above example, the city or town would be responsible for the care and upkeep of the trail. While you would not be permitted to do anything that would damage the trail or make it inaccessible, you also would not be responsible for its upkeep.

Repairs and Improvements

Although the easement owner is legally responsible for its maintenance, you have the right to repair or improve it if you wish. If you have a public road on your property and you decide to pave your driveway, you are free to pave the public road as well.

Can You Build a Fence on a Public Utility Easement?

Since the easement is legally your property, does that mean you can do anything you'd like to it, such as building a fence? The answer depends on how it is being used and how your modifications affect it.

Public Easements

In general, you are allowed to do anything you'd like as long as it does not violate the terms of the easement. For example, if there is a public right of way that crosses your property, you may build a fence on or around your property as long as it does not restrict access to the right of way. Blocking access to a public easement may result in legal action against you.

Utility Easements

You are typically allowed to build on top of a public utility easement. For example, if you have a city water line under your property, you may build a fence over it. However, the city would have the right to tear down the fence to access the water line for repairs.

Are Easements Public Record?

In most cases, there is a written contract that specifies what an easement is to be used for. Not only does this protect the best interests of both parties, but it also ensures that any future owners of the property understand their rights and obligations.

This record is normally filed as part of the property deed with a local office; this may be the town or county office depending on what state you reside in. Unfortunately, not all easement agreements are recorded. If there is no written record, a future owner of the property may have grounds to terminate the arrangement.

Can You Remove a Public Easement?

Perhaps you have just acquired a property with a public easement and you want to remove it. Perhaps you have owned the property for a long time, but now allowing public access has become an inconvenience. Unfortunately, you are likely to have a difficult time getting the easement removed.

A public easement is different from most legal contracts. It is recorded as part of the deed to the property and remains in place when the property is sold, so any future owners must adhere to the same terms.

Challenging a Public Easement

In some cases, the easement holder will agree to terminate it. Some easements have expiration dates; if this is the case, it will be stated in the paperwork. If the expiration date has passed, your case should be straightforward.

Otherwise, your only option is to go to court. While removing a public easement is difficult, there are a few circumstances that may work in your favor:

  • The easement is no longer used
  • The easement is no longer necessary
  • The easement is being abused or misused
  • The previous property owner failed to properly record the easement

You may need to consult a real estate lawyer for help getting an easement removed.

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Discussion Comments

anon296860

If the utility company has the right to use your property, does your neighbor have the right to use that easement even though they have access to other ways to the road?

anon281980

I have a question. We are renting and considering buying a property in Arizona. I was told that the road in front of the house is a private road. One neighbor was granted to trespass on the road but that's all.

After the road end the next (private) property leads a walkway to the creek. People come by every day and its become a real problem (including people doing illegal things like drugs and breaking into houses).

How can I find out if the road has become public due to usage? Can I put up a fence? or What options do I have?

matthewc23

I have lived in the eastern US for a while where coal mining is a big industry. What I always thought was interesting is that the coal companies have the mineral rights to almost all of the land in those areas. What that means is that they can't harvest trees or anything off of the land or profit from anything above-ground, but the coal below the surface is theirs whenever they want it.

I'm pretty sure there are provisions that they can't destroy houses and whatnot, but they sometimes come into conflict with property owners. I worked with one company that owned a lot of forestland in one of those areas, and they were always keeping in touch with the coal companies to know where they were mining. If they were going to start tearing up the property, they wanted to know far enough ahead so that they could harvest all the trees and get some sort of profit from the land.

It really is a bad situation in the end, because the coal companies benefit, but there are a lot of properties with trees that could have been harvested for profit had the coal companies been more vocal about where they were working.

TreeMan

I really don't know what type of easement rights this would cover. I guess it could address public or private easements depending on the parties involved. Whereas most easements concern someone wanting to make modifications to land, another type of easement is for a situation where someone wants someone else to not do anything to their property.

I live in central Kentucky where horse farms are everywhere. These easements happen pretty regularly where a group of environmentalists or someone will buy an easement from the landowner to horse pastures stating that the land can never be developed for commercial purposes, or however they word it. Really, what the people are trying to do is stop the urban spread and make sure the land stays like it is for the various environmental benefits it provides.

The thing that has come under scrutiny, though, is that these people would probably not be changing the way they manage their land anyway. Should people really be spending their money protecting the horse pastures instead of forests and agricultural fields that are much more vulnerable?

cardsfan27

@jmc88 - That is right. You alluded to the other type of public easement. I worked for a short time for the U.S. Army Corps of Engineers, and we ran into the problem pretty regularly. The Army Corps is basically in charge of delineating wetlands according to the Clean Water Act and various other acts. Once the CWA was passed, we had to delineate wetlands and notify property owners of the new laws.

As frustrating as it might have been for some of them, the CWA basically said that they didn't have the same rights to their land that they had held for decades before that. The government also wasn't responsible for any losses their property incurred because of the act, either. That is what really irritated most people. According to the federal statues, unless the new laws took away 100% of the value of their property, the government wasn't responsible for compensation.

It was mostly a problem for people who lived next to lakes and rivers, and there were quite a few court cases concerning the law. In the end, though, everything was found to be constitutional.

jmc88

@Kaboom and JaneAir - Government easements can get pretty complicated, though. Like you two mentioned, the government can take whatever property they want as long as it is justifiable. The real problems begin when you start trying to decide whether or not the government owes you money or not for taking your property.

Probably the most high profile instance of this happening was when the interstate highway system was being installed in the 70s. The law basically stated that the government could take any land they needed for a public right of way as long as they provided "just compensation." I think in most cases, they just went with whatever the market price of the house was.

I'm sure it would be unfortunate, though, if you had a house with a lot of sentimental value that your grandparents built or something and the government just came and tore it down. From what I've read about it, though, most of the time they prices they gave people for their land was more than fair.

julies

@Mykol - You are fortunate you have been able to share an easement in peace. There have been many other situations where this has not been the case.

My nephew and his wife bought some land and began building a house on it. Come to find out, they were land locked as far as getting the utilities to their property.

If they wanted electricity at their new house, one of their neighbors needed to give them a road easement.

This became quite a battle as their neighbor was not very happy about having someone live next to him. He did everything he could to make this process hard and expensive for them.

When it was all said and done, they were able to get this done, but it ended up costing them more than they had planned on. They also had a strained relationship with this neighbor as long as they lived there.

golf07

We live in town and the back side of our house leads to a creek and there is also a bike trail behind our property.

Technically, this bike trail goes through our yard and several of our neighbors yards. This was all done before we ever bought the house, so I don't know how this easement law was addressed when they began building the bike trail.

All I know is this is a public easement because the public is free to use this trail. The city is also free to come and maintain and/or repair this trail at any time.

It sits far enough away from our property that it has never been an issue. We knew this before we ever bought our house, so we haven't had any problems with it. Some of our neighbors who were living here before the trail was built still have hard feelings about it.

I enjoy having the wooded area even in the middle of the city. That is one of the biggest reasons we bought the house, and have not had any problems knowing there is a public easement at the back of our property.

LisaLou

@Mykol - It has been my experience that private easements can be just as hard to negotiate as public easements.

It seems like one of the biggest differences between public and private easements is that you may have more of an option to say no to a public easement than a private one.

We currently have a shared driveway easement with our neighbor. We live in the country, and there is a long lane that leads to our houses. At the end of the lane, the driveway splits going one way to our house and the other way to our neighbors house.

This easement was drawn up before either of us owned the property. Since this is the only way either of us can reach our houses, it has never been an issue for us. It also helps that we get along well with our neighbors and have become good friends.

Mykol

@starrynight - We have a private easement with our neighbor. Even though our drainage tile is underground, it crosses under our neighbors property and dumps into another neighbors property.

If you have one party that is reluctant to give an easement, this can end up being pretty frustrating. We didn't have any trouble getting permission from the neighbor who owned the land where the tile dumped in to.

We had trouble with the neighbor whose driveway we needed to go under. She was afraid that by giving us easement we would be able to go on her land anytime we wished without her permission.

She is a single lady who lives alone on acres of property, so she is kind of paranoid about this. If it were me, I would welcome caring neighbors who would look out for me rather than seeing them as trying to take advantage of me.

We had to get this easement written up by an attorney and the wording had to be very specific. It took more than once before she was satisfied with the way it was worded and signed off on it.

starrynight

I learned awhile ago that there is another type of easement: a private easement. This is an easement that occurs between two private citizens and actually doesn't have to be contractually based. If someone starts using your land and you let them for a long time without stopping them, they can be granted basically a common law easement to continue their activities.

It sounds like a public easement is much more official and has to be contractually based. I think this is just a better and more honest way to go about granting an easement to any party, public or private.

JaneAir

@KaBoom - Yeah, I'm pretty sure the government can demand an easement to access your land if they want to build a public highway through it or something like that. Although the sewer example in the article makes sense too.

I think I would try to resist a public easement if I could. I'm sure it would be extremely annoying having someone dig up your yard to put a sewer line in or something. Also, I assume if would really bring the property value down. I know I personally wouldn't want to buy a piece of land with an easement attached to it.

KaBoom

I have heard of easements before, and I've always thought they were kind of weird. Usually when you buy land, you assume you're going to own it and no one else is going to have the right to access it. Easement rights change all that.

I think I would personally ask for money for a public easement if the government wanted to do something on my property. However, if I understand correctly, the government doesn't have to pay if they don't want to. I believe they can commandeer land for public use if they want to.

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    • An easement requires a property owner to allow public access to a limited portion of land for a stated purpose..
      By: Barbara Helgason
      An easement requires a property owner to allow public access to a limited portion of land for a stated purpose..