Easement Definition Made Simple
Easements give another person or entity a right to effectively trespass upon or use land that's owned by someone else.
Easements can be used for roads, or given to utility companies for the right to bury cables or access utility lines. Landlocked homeowners sometimes pay for easements to cross the land of another to reach their homes or other destinations. These payments can be made once, annually, or on any agreed-upon schedule. Easements can also expire after a certain time period.
Land containing an easement is sometimes referred to as a "servient estate."
Easements Aren't Uncommon
Almost every home has some type of easement, generally for utility access. Look for easements in the public records, especially if you're a prospective buyer plans to put in a swimming pool or erect an additional structure. A property owner can't build on top of an easement.
Easements run with the land—they convey right along with it when it sells or is otherwise transferred to a new owner. Easements don't run with the homeowner of the property that has the right to use the easement. A landlocked homeowner might be granted an easement, but a new owner generally can't purchase the easement along with the property if the property is transferred to a new owner.
Types of Easements
The most common type of easement found in residential neighborhoods is for public utilities. You might have an easement that allows a city electrical worker to trespass on your property to reach an electrical pole if you have one in your backyard. This type of access easement would most likely not be specifically defined.
Not every sewer line runs through the street. It's more common to find a sewer line or cesspool in a backyard in older cities.
You should know where underground utilities are located, especially if you plan to excavate any portion of your land. You can call a city hotline in some municipalities and the utility division will send out a city worker to stake your property with flags, depicting the types of utilities that are underground.
Other types of easements might involve a shared driveway, or path that could be the only access point from the road to a home behind your property. An appurtenant easement refers to a route across land that leads to another destination.
A negative easement prevents something from occurring, such as a copse of trees being planted that would block a homeowner's television satellite signal or even a view that contributes to the value of the property.
It's usually easiest to offer to pay your neighbor for an easement if you need to acquire one on their land. Just make sure to record it.
Easements by Prescription
Easements by prescription are acquired by "hostile, open, and notorious use." Prescriptive easements can be claimed by a person who continuously travels across a parcel of land owned by another without the owner's permission or consent. Think of it as a version of squatter's rights.
Prescriptive easements are generally found in more rural settings, not in an urban environment.
Prescriptive Easements vs. Adverse Possession
The concept of prescriptive easements might seem similar to adverse possession on the surface, but they're actually quite different.
Adverse possession involves continuous notorious use for a period of up to 20 years or more. The use is common knowledge and it's flagrant. The user has effectively claimed exclusive ownership of the property.
A prescriptive easement is more a matter of sharing the land in question rather than taking it over entirely.
Consult a lawyer if you're hoping to acquire property via adverse possession because you might have to pay any past due property taxes associated with it. Several other legal caveats exist as well.
The Implications of Easements
Homebuyers don't always read a title insurance preliminary report or title commitment when they're buying a property, but both should lay out where any easements are located on the property.
A sample easement description might say that it "covers the Easterly 5 feet." This would mean that you can't build a fence or install any type of permanent structure—or even a swimming pool—in an area that runs for five feet along the east side of your property line.
Some easements are only referenced in the title paperwork. They're not drawn out on a map, so you might have to get your hands on the assessor's map or plat map to determine exactly where they're located.
You can also ask for the description of the easement in the legal document that's recorded by book and page in public records.
At the time of writing, Elizabeth Weintraub, CalBRE #00697006, is a broker-associate at Lyon Real Estate in Sacramento, California.