Facts About Easements and Rights-of-Way
When Others Can Use Your Land
An easement is a right for someone to use land for a specific purpose when it is owned by someone else. If there is an easement on your land, the property is yours, but others can access it.
How they access it depends on the type of easement that has been granted. Learn the different types of easements, how they work, and how to identify one on your land.
What Is an Easement?
When you purchase property, there might be an adjacent landowner, business or government that needs access to portions of your land to get to their property or conduct business. An easement is a legal ability to use someone else's land for a specified purpose.
Generally, transferable easements are listed on a deed or other legal documents disclosed when purchasing the property.
It's your responsibility to check for easements before erecting or building on any area of your property. This information doesn't automatically appear on building permits, and applying for a building permit will not necessarily result in a search for easements in public records.
How an Easement Works
An easement exists if there was permission given for an activity to occur at some point. Easements can be granted by landowners and written and recorded at a county clerk's office, or implied as necessary without any written action. When registered and recorded, the easement becomes an encumbrance—or a claim—on the land's title.
For example, Ms. Smith owns a tract of land that borders the Nantahala National Forest. The forest is a popular area for hiking, climbing and fishing. Mr. Scott, an avid hiker, lives next door, but his land doesn't touch or abut the national forest land. He must access the forest by walking or driving to a public entry point to avoid trespassing.
Ms. Smith decides to grant Mr. Scott an easement, and has it recorded at the county clerk's office. This allows all present and future owners of Mr. Scott's property to cross Ms. Smith's land to access the national forest. The easement becomes a part of the deed for both properties.
Ms. Smith could grant an easement to another individual to do the same without adding it to her deed. This type of easement would usually expire at a specific time or upon a particular event, such as the death of the individual who benefits from it.
Ms. Smith could verbally give Mr. Scott permission to cross her property. Ms. Smith did not grant an easement, but she should talk to a lawyer to confirm she has not given any of her property rights away.
Easements vs. Right of Way
An easement is the right to use another person's land for a stated purpose. It can involve a general area of the property or a specific portion.
A right of way is an easement that allows someone to travel through your property to get to another location. A right of way can be offered to one person, several people or the public.
There are two types of easements—the easement in gross and appurtenant easement. Easements in gross are assigned to individuals or companies for a specific purpose. If property ownership is transferred through sale or other legal methods, a new easement agreement must be made.
Appurtenant easements are attached to the property, not the individual. Rights-of-way are typical of this type because they pass through one property to another and are passed on with the property.
Other Types of Easements
Falling under easements in gross and appurtenant easements are some specific types that should be mentioned because they give particular entities specific abilities on property:
- Utility easements
- Prescriptive easements
- Easement by necessity
- Private easements
- Stormwater management or development easements
Utility easements are the most common type of easement and give utility companies the right to use a specific portion of the property for utility purposes.
Prescriptive easements are a type of easement that is created when someone has been openly using a portion of your land without your permission. This easement concept gives them the right to continue using your land if the length of use meets specific requirements.
Every state has different laws regarding prescriptive easements. The statutory time limit could be anywhere between 10 and 20 years.
An easement by necessity is when someone legally has a right to use a section of your property if there is a justified need for it. The most common example of this easement is a property that doesn't have direct access to a road except through another property.
Ms. Smith, from the previous example, granted Mr. Scott a private easement they recorded at the county courthouse. Private easements are often, but not always, sold to another landowner for use.
A housing development might possess an easement that allows it to build and maintain a water storage facility or maintain a waste or stormwater management system.
Effects of Easements
The landowner who grants an easement can't build structures within a prescribed area surrounding it or use fencing to hinder access. Any activity that blocks the use of the easement is generally prohibited.
Easements create problems for land- and home-owners when they don't bother to ensure they know where easements are. They might install fencing on the easement, then wonder how the fence can be torn down by the utility company when they need access to something.
You should know where all easements are located and what restrictions are associated with them before purchasing a property. Ensure you review the title commitment or preliminary title report before closing.
Can Easements Affect Property Values?
An easement can affect property value. However, if you buy land with an existing easement, the value already includes the easement. If an entity purchases an easement on your property, a real estate appraiser conducts a valuation of the property.
The appraiser adjusts the value based on the rights conveyed and how the easement use might affect the property surrounding it.
If the property is strictly residential, easements generally do not affect property value because, in most situations, the easements are along the edges of the property and are only utility or stormwater management easements.
Identifying an Easement
Not every easement is included within property deeds. Some easements are recorded as part of public records. One simple method for identifying easements is to get the property records from the courthouse and look over them.
Talk to an experienced real estate attorney to determine how, when, and if an easement can be terminated.
If you don't find anything, walk the property you intend to buy and look for stormwater drains, tire tracks, evidence of someone else using the property or any other signs that an easement might exist.
Another action you can take is to ask the title company to give you a copy of any easements they have. Not every title company automatically provides copies of recorded easements, because title companies are ofter only required to notify owners that the easement exists. Easements are also not covered by title insurance.
Sometimes, easements are excluded on Schedule B of your title policy commitment or preliminary title report. Generally, there is a notation that includes where to find the documentation.