An easement is a property right that allows its holder to have an interest in a piece of land that is owned by someone else. Easements can be complex and there are a number of legal issues that can occur after they are created, implemented, or interpreted. The fact that many people will at most encounter one easement during their lifetime further complicates the matter. An example of where someone could use an easement is if you are planning to create a garage that overlaps your property line. In this case, you may need to file an easement on your neighbor’s property to construct your garage. Another common use for easements is if a utility company needs to go through your property to access an electrical pole.
While it can be difficult to understand easements, this article will outline basic information about easements and what types of easements can lead to positive or negative outcomes.
Types of Easements
There are many different types of easements that are each used under a different set of circumstances. Thus, if you need to utilize an easement or someone else places an easement on your property, it is vital to understand which type of easement it is so you can understand your legal rights.
Easement Appurtenant
An easement appurtenant is tied to the property itself instead of the owner of the property. Thus, the easement will still be on the property even if the owners of the land change. In most cases, an easement appurtenant is a positive type of easement for a property. For example, an easement appurtenant could be used if two properties have access to a private beach. Thus, if the owner of one property sells their home, the new owners would still have access to the beach property.
Easement in Gross
An easement in gross is bound to a specific person or entity instead of a piece of property. Utility companies most commonly use easement in gross so that they can build or maintain a utility that is on or near a person’s land. However, a property owner could also utilize an easement in gross so that a friend could use their property. For example, a property owner may give a friend an easement in gross so that they could fish, hunt, or hike on the property.
If an easement in gross is put on a property by a private entity and then is sold, the new owner of the property can opt to renew or deny this easement. One important note is that if the easement is put on a piece of land by a utility or other public company, the new property owner could be taken to court if they deny the easement.
A new property owner can take on an easement in gross after purchasing a property. However, the easement holder cannot give their property rights to another entity. Thus, in the example above, if you gave one of your friends an easement to hunt on your property, they could not transfer this easement to another person or business. Similarly, the utility company cannot transfer their easement to another public company without the property owner’s consent.
Easement by Prescription
An easement by prescription—also known as a prescriptive easement—will be utilized when a person has continuously used property for a long period of time as if this person already had an easement. To receive an easement by prescription, one must meet the following criteria.
- Continuous use for a specific period of time: Every state is different. However, to receive an easement by prescription, someone must have been using another person’s property for between 5 – 15 years.
- Open and notorious use: The use of the property must be obvious, observable, and not secretive.
- Hostile use: Hostile use does not mean someone used another person’s property maliciously, instead, it means that the use occurred without the real property owner’s consent.
- Exclusive use: Exclusive use is not required in every state and the definition of exclusive use changes based upon the state. Exclusive use means that the use of property cannot have occurred while the true owner of the property used it. For example, say you own a dock, and your neighbor has been using this dock for five years. If you have not been at the property at all during this time, even if the neighbor has not gotten your permission, they could seek an easement by prescription to continue using your dock.
Affirmative or Negative, Private or Public
Every type of easement can either be a public or private easement and an affirmative or negative one. A private easement allows a property owner to grant land use to another person. A public easement allows the general public to access the property. An affirmative easement lets someone do something on a property while a negative easement forbids it.
Creating an Easement
There are three main ways to create an easement: express easement, implied easement, and easement by necessity. The method you use to create an easement will largely depend on the type of property you have. It will also depend on whether you can agreeably reach the easement with the other party.
Express Easement
The most common way to create an easement is through an express easement. An express easement refers to an easement that is created through a legal document and signed by both parties.
Implied Easement
An implied easement is not written down as it’s obvious that the other party would need to use the property. For example, if you decide to split and sell one large piece of land that has one road going through the middle of it, the new owner may need to use a portion of your road to getting to their property.
Easement by Necessity
Someone will use an easement by necessity when the law requires it. Further, this tactic is used when the only practical and reasonable way to access a piece of property is through another’s property and an easement cannot be easily reached. If someone creates a new road or way to access the property, the easement by necessity can be terminated.
Rules of Property Easement
If you come across an easement before you buy a home or during your homeownership, here are a few tips.
Purchasing a Home with a Property Easement
If you are purchasing a home that has an easement, it is not automatically a bad thing. While an easement could be annoying, it may actually be a good thing. On the other hand, you may not even notice that an easement is on your property. However, you should find out why a company needed to make an easement on your property. For example, if a utility company had to install underground wires, you may not be able to add a pool.
Abiding by an Easement
An easement is legally binding and must be followed. If you do not follow the easement in any way, you could encounter legal disputes. To ensure that you are following your easement, make sure the other side of the easement is following their duties.
Challenging an Easement
While an extensive process, you can challenge an easement in court. The only way to easily resolve an easement is if both parties terminate the agreement or the easement expires. If someone contests your challenge to an easement, you should hire a real estate attorney to help with this process.
Final Thoughts
With over 20 years of experience, Antonoplos & Associates real estate attorneys have the knowledge and experience required to assist clients with real estate litigation in DC, Maryland, and Virginia. Furthermore, because our attorneys have a strong background in real estate, construction law, and business law, we can assist clients with a variety of real estate litigation issues.
Contact Our DC Law Office for More Information
Finally, for more information regarding the basics of easements on real property, contact us at 202-803-5676. You can also directly schedule a consultation with one of our skilled attorneys. Additionally, for general information regarding real estate law, check out our blog.