What Is an Easement?
In real estate, an easement is something that gives someone the right to use land that does not belong to him or her for a set and specific purpose. Common examples include utility poles on private land and shared driveways. Depending on how an easement is set up, it may be integrated into the deed for a property, making it permanent, or it may be a temporary measure which has an expiration date. In general, the use of the land must not be in conflict with how it is used by the legal owner.
There are many different types of easements. Most break down into two categories: easement appurtenant and easement in gross. In the case of an easement appurtenant, it is an agreement between two neighboring landowners which may benefit both. For example, a landowner may be granted an easement to run a ditch through a neighbor's property for drainage. Because the ditch can be used by both landowners to prevent flooding, it is a beneficial agreement. Other instances are simply agreements between neighbors, such as one neighbor granting another permission to cross his or her property to reach a park.
An easement in gross, on the other hand, is only attached to one property, not to neighboring properties. The most typical example of this type is a public utility easement, which allows a utility to run water, power, gas, or sewer lines through private property. Deeded Coastal Access is another type of easement in gross, allowing members of the public to cross private land to reach a beach or shoreline.
A lease or a license is different from an easement. A lease gives someone much more control over a piece of land, in exchange for payments of cash at set intervals. A license is a specific permission to do something, such as park a vehicle, but it can be revoked at will. Cancellation of an easement requires more work, although it is possible. Typically, it is a written agreement, although it can also be implied. For example, if someone has been using a neighbor's property to access something for an extended period of time, an easement is assumed, and the affected landowner must actively work to end it, if that is desired.
An easement can be used to grant permission to do something, or it can restrict a landowner. A permissive easement is the more common type. Restrictive easements may limit development, prevent someone from building a house over a certain height, or limit other activities on the land. These are not uncommon in planned communities, to ensure a uniform look and feel for the area.
Historic and conservation easements also exist. These are aimed at preserving valuable resources and history for society in general. They usually limit development and activities that will be permitted on the land in question, and are donated by the landowner. In most cases, a trust is established to care for the land.
Frequently Asked Questions
What is an easement?
An easement is a nonpossessory property interest that grants the easement holder the right to use the land of a third party. Legally, an easement is a sort of property interest held by easement users. In layman's terms, an easement provides a person or specified entity - for instance, children from a neighboring school - access to your real property for a limited and stated purpose.
What kinds of easements exist?
There are different types of easements, such as appurtenant easements, easements in gross, prescriptive easements, and negative easements. Easements appurtenant to a particular parcel of land are transferred along with the sale of the property. In general, easements are granted to a person or organization, such as a utility company, and are not attached to a specific parcel of land. Prescriptive easements are produced when someone utilizes another person's property without permission for an extended period of time. Negative easements restrict property usage, such as banning the owner from erecting a construction that might obstruct someone else's view.
How do easements come about?
Easements can be created in a variety of ways, including express consent, necessity, prescription, or court order. The most typical form to construct an easement is by express agreement, in which the parties sign a legal document outlining the terms and conditions of the easement. Whenever a property owner needs to traverse someone else's land to get to their property, a necessity easement may be granted. If someone has been publicly and regularly using another person's land for a particular period of time, a prescriptive easement may be created. Finally, if an easement is deemed vital for public use, such as providing access to a public beach, a court may grant it.
Is it possible to terminate an easement?
An easement may be terminated for a variety of reasons. The most prevalent are: impossibility of purpose, merger, removal of necessity, abandonment, adverse possession, eminent domain, and the stated provisions of the easement itself.
What effect does an easement have on property value?
An easement can affect the value of a property in both positive and negative ways. A beneficial easement, such as access to a public beach or utility services, can raise the value of a property. A negative easement, such as a view easement, which is an easement whereby the dominant estate enjoys the right to have free access to light, a little air, and a view overlooking the adjoining estate and no windows, apertures, balconies, or other similar projections that afford a direct view upon or towards an adjoining land or tenement can be made, might reduce the value of the land. Furthermore, if the easement is oppressive or restricts the use of the property, the property value may suffer. Whether buying or selling a home, it is critical to evaluate the impact of any easements.
Can I legally cable off a driveway easement, which is on my property? It is not locked, just cabled off during our hunting season of nine days, to prevent trespassing hunters. Can I do this, even though the property behind me, whom I granted the easement to, says I cannot?
Help! We need your advice. We just purchased a rural property in Montebello, Va. The property has no power. In order for us to get electric, we have to pay our neighbor 50K or give him 40 acres of our land in exchange for a utility easement. Is this legal? The power company doesn't seem to have any legal right to put a stop to it. Thanks so much for your help.
I inherited property that has a building on it that slightly goes onto the property next door. The building has been there for over 40 years. The property was owned by the same person at one time so it wasn't an issue. Now the man who owns the property next door threatened to have me tear it down if I don't allow him to use part of the building. I allowed him the use, but just found out that I may be setting myself up for an easement type issue. Is this true?
I have looked at property on Logan Martin lake and the company has determined there is no septic system for the mobile home on the property. What are the rules for putting leach lines in Alabama Power flood easements? Do they have to be above the 100 year line or above the normal flood easement?
I have a very large tower in my back yard, which was already here when we purchased the property. Should I be getting compensated by my electric company?
Is there any law where a US ditch or canal easement matures into a road easement, or actually defined a road rather than a waterway?
My neighbor has the only utility pole near our newly purchased home and the pole sits just outside the easement line so we need her permission to get to the pole. She has denied us and others on the block access so we have not had cable or internet in a month. We could get dish but we still need access to the pole to get internet or phone. Is there any way around her if there is no easement?
My neighbor extended his garden at the back of our property which is an easement. Does he have a right to do it?
If prior to moving in, some neighbors signed an agreement for a utility easement -- which has expired -- yet none of them have the utility lines are their property: l) did any have a right to sign on to the easement 2) does one property owner have the right to be responsible for all others 3) we learned the lane was not recorded by the developer: do we have a right to say go away? That is where it has come to in being interrupted, unable to get out of our own drive due to utility, etc.
P.S. It is a dead end and we are at the dead end and the only ones who cannot enter or have an exit if obstructed or will die when it is obstructed. None of the others who are off the county maintained road or have their frontage on another lane.
Help. We legally allowed someone to cross our land (a right of way), and now they put a metal gate on our property and will not remove it. The right of way clearly states they can cross our land to get to their land, but how do we handle this problem? can we tear it down? or can we get out of this agreement? Thanks. --Shawna
help. We have a 1.7 meter easement at the back of our property that is on our deed. Our neighbor asked for access to build a stormwater drain as they are building four properties on the two blocks on the upside. They agreed to restore the site so we agreed.
They have, however, ripped down the fence, brought in an excavator, destroyed all the plants and the wood shelter and landscaping and left it as a clay pile.
All bluestones are buried and the top soil removed. It is a wasteland. They keep stalling us to restore it and we are having to keep our dogs inside, and one is a pedigree breeding dog. We are lost. What should we do next?
bycymi: your best option is probably to find out exactly where the easement boundary is, and move your fence there, so they won't be coming through your gate at all.
Utility easements are a very sweet deal for the utilities in one specific way: they get to use all these little pieces of land for their purposes, but they don't own them, so I would guess they don't pay any property taxes on them.
would you buy land that has a natural gas line easement? The land is cheap but the pipe line is already buried there. I want to build a home on it but I'm worried about the natural gas.
I have a problem: peco wants to put relocate a utility pole onto my property and in the process having to tear out my hedges. Shouldn't I get compensated since my yard will no longer have hedges which I like for privacy for me and my small children. I live on and own this corner lot off a main road. thank you to anyone who gives advice.
I am currently renting a house that is accessed through an easement through a farm. The landlord (owner of the landlocked property) has someone maintain the easement road as far as grading and plowing in the winter, but who is legally responsible for the maintenance? If the easement is damaged to the point it makes it difficult or dangerous to transverse by the farmer, is he legally bound to repair it?
Must utility companies pay for their use of an easement? Does it matter whether a property was purchased with an existing utility easement?
The utility companies have placed a utility pole on my property without my permission. I looked at records dating as far back as 1950 and was unable to find a recorded utility easement. Does the utility company have a right to place a utility pole on my property without financially compensating me? Furthermore, they have placed 2 other poles obstructing my neighbors and my right-of-way, which is preventing us from driving our cars to our off-street parking in DC. Can they do this? Now there is know no way for Emergency vehicles to reach the rear of our property.
bigredsc, first, I sympathize with your situation as the utilities (So Cal Edison at least) rarely ever send out reminders about maintaining trees or the rules regarding their easements. I used to work on the project you are talking about and about 85% of the people in your situation are shocked to learn they can't impede access. The quick answer to your question is, yes, you are 100% responsible for the wall you chose to put around their pole. Think of it as, what if the city, who owns the street in front of your property decided to put up a wall all along your drive way for whatever reason? You would be right to demand they remove or move the wall and all at their expense.
bycymi, at least in California, accessing the easement 24x7 is the utility's right and it's considered somewhat of a safety issue to lock them out. The down side of having electricity, phone, and CATV is the occasional annoyance of having crews show up to make sure that you get all your utilities delivered safely, reliably and with as little down time as possible.
I've seen it before where the electric company wants to do some work on a pole which will also involve upgrading the transformer. The field designer will go out to the pole and not be able to get access so he turns the job back in and it sits for many months and sometimes for over a year. Summer comes around and the demand on that transformer the designer would have replaced finally blows and it could be days before a crew is available to finally come in and get everything restored. BUT, if the job would have been done when the utility planned to do it, the interruption would have been for only 4 hours AND you would have had a few days notice.
I understand the need for utility companies to access their poles, but on the same hand what rights do I have as the property owner. On a constant basis, I have cable debris and tree trimmings left in my yard, not to mention they arrive unannounced, leaving my gate open and yard unattended. Several times I have had my children and pets alarmed. Do I have the authority to put a lock on my stockade fence and allow them to enter at my convenience?
In most cases a utility is placed within an easement. As a homeowner, you own the land but the easement gives the utility company full rights to enter the land to repair the utility. You must maintain the easement area but cannot obstruct the area with a permanent structure which makes it difficult to repair or maintain the utility. I assume that the "wall" is decorative to hide the ugly utility pole. If the wall was built by the utility company and not the homeowner, then it doesn't make sense that you are fronting the bill for their decorative wall. Check your deed and see if you have a utility easement or if the utility is in the "right of way".
I have a utility pole on my property line with a brick wall on either side up to the pole. I received a letter from the utility company saying that I do not conform to rules & regulations. They want to replace the pole due to it rotting and want me to move the wall back 3 ft on each side at my expense. Since it is their pole, shouldn't they pay for the removal and replacement of my wall? I live in LA county.
Post your comments