Understanding Easements
An easement is a non possessory right to use land in the possession of another. Imagine that your neighbor has to use your driveway to access her otherwise unreachable property, and you are agreeable to this. An arrangement is formalized by conveying an easement to your neighbor, allowing her a legal right to enter and use your driveway to reach her property. The easement does not grant her any ownership interest in your land.
Expressed or Implied?
By documenting the easement, you've created an expressed easement. The utility company's right to maintain electrical lines that cross your property is an implied easement, based on the prior use; the lines were in place when the land was purchased.
Grantor and Grantee?
The heart of an easement is a grant of use. The party that grants the right of use is the grantor, while the party accepting the right is the grantee. In this case, you would be the grantor, and your neighbor would be the grantee.
Dominant or Servient?
Easements have a benefit side and a burden side. The property that benefits from the easement is the dominant estate. The property that is burdened by the easement is the servient estate. In our example, your neighbor benefits.
Appurtenant or In Gross?
An appurtenant easement is viewed as attached to a property, and unaffected by a change in ownership. An in gross easement follow the grantee. Because anyone who purchases your neighbor's property will need to use your driveway, the easement is attached to the property.
Affirmative or Negative?
The easement allowing your neighbor to use your driveway is affirmative because it grants a right of use. By contrast, a negative easement operates as a land-use control, possibly prohibiting agricultural use or construction that would block a view or restrict access.
Prescriptive Easements
A prescriptive easement arises if someone uses part of your property without your permission. The most common prescriptive easement arises when a fence is erected on the wrong wide of a property line. The legal test to acquire a prescriptive easement of another owner is that the use must be (a) open, not secret, (b) notorious, clearly observable, (c) continuous, without interruption for the number of years required by state law. The minimum hostile use varies from 5 years in California to 30 years in Texas.
Buyer Beware
To avoid unexpected surprises, property buyers should always obtain a copy of the owner's title insurance policy at the time of property purchase. If any issues arise, the title insurer is liable for the diminished value of the property or the Cost of removal. Even so, not all easements are properly documented or recorded. Any time an easement on the title report raises concern or is confusing, you may want to consult a real estate attorney to review the language. One example of a "red flag" easement would be a shared driveway agreement with no maintenance provision. Depending on the nature of the concerns, you may then need to hire an appraiser or surveyor (to assess a problem utility easement), or an environmental specialist (if a conservation area or geological rights are at issue).
An easement is a non possessory right to use land in the possession of another. Imagine that your neighbor has to use your driveway to access her otherwise unreachable property, and you are agreeable to this. An arrangement is formalized by conveying an easement to your neighbor, allowing her a legal right to enter and use your driveway to reach her property. The easement does not grant her any ownership interest in your land.
Expressed or Implied?
By documenting the easement, you've created an expressed easement. The utility company's right to maintain electrical lines that cross your property is an implied easement, based on the prior use; the lines were in place when the land was purchased.
Grantor and Grantee?
The heart of an easement is a grant of use. The party that grants the right of use is the grantor, while the party accepting the right is the grantee. In this case, you would be the grantor, and your neighbor would be the grantee.
Dominant or Servient?
Easements have a benefit side and a burden side. The property that benefits from the easement is the dominant estate. The property that is burdened by the easement is the servient estate. In our example, your neighbor benefits.
Appurtenant or In Gross?
An appurtenant easement is viewed as attached to a property, and unaffected by a change in ownership. An in gross easement follow the grantee. Because anyone who purchases your neighbor's property will need to use your driveway, the easement is attached to the property.
Affirmative or Negative?
The easement allowing your neighbor to use your driveway is affirmative because it grants a right of use. By contrast, a negative easement operates as a land-use control, possibly prohibiting agricultural use or construction that would block a view or restrict access.
Prescriptive Easements
A prescriptive easement arises if someone uses part of your property without your permission. The most common prescriptive easement arises when a fence is erected on the wrong wide of a property line. The legal test to acquire a prescriptive easement of another owner is that the use must be (a) open, not secret, (b) notorious, clearly observable, (c) continuous, without interruption for the number of years required by state law. The minimum hostile use varies from 5 years in California to 30 years in Texas.
Buyer Beware
To avoid unexpected surprises, property buyers should always obtain a copy of the owner's title insurance policy at the time of property purchase. If any issues arise, the title insurer is liable for the diminished value of the property or the Cost of removal. Even so, not all easements are properly documented or recorded. Any time an easement on the title report raises concern or is confusing, you may want to consult a real estate attorney to review the language. One example of a "red flag" easement would be a shared driveway agreement with no maintenance provision. Depending on the nature of the concerns, you may then need to hire an appraiser or surveyor (to assess a problem utility easement), or an environmental specialist (if a conservation area or geological rights are at issue).
