Learn How Easements and Rights-of-Way Work

When Others Can Use Your Land

Young family standing by a white fence
•••

Big Stock Photo

An easement is one person's right to use land for a certain purpose when it is owned by someone else. If there is an easement on your land, the property is yours, but other people can use it or access it. It all depends on the terms.

How other people access it depends on the type of easement that has been granted. Learn about the types of easements, how they work, and how to know whether there's one on your land.

What Is an Easement?

When you buy property, there might be a nearby landowner or business or someone else who needs access to portions of your land. They may need to pass through your property to get to their own property or conduct business. An easement is a legal ability to use someone else's land for a certain purpose.

In many cases, a transferable easement is listed on a deed or other legal documents. This is often disclosed when buying the property.

Note

You should check for easements before building on any part of your land. This information doesn't always appear on building permits. Applying for a building permit will not always return results for easements in public record searches.

How an Easement Works

An easement exists if there was permission given for an activity to occur at some point. It can be granted by landowners and written and recorded at a county clerk's office. It can also be 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 instance, suppose that Ms. Smith owns a tract of land that borders a national forest. The forest is a great place for hiking, climbing, and fishing. Mr. Scott, an avid hiker, lives next door to Ms. Smith, but his land doesn't touch any of the national forest land. In order for him to access the forest, he has to walk or drive to a public entry point. This ensures that he avoids trespassing.

Ms. Smith and Mr. Scott are good neighbors, so Ms. Smith decides to grant Mr. Scott an easement to save him some trouble. She has it recorded at the county clerk's office. This easement allows all present and future owners of Mr. Scott's property to cross Ms. Smith's land to access the forest. The easement becomes a part of the deed for both properties.

Ms. Smith could grant an easement to another person to do the same without adding it to her deed. In most cases, this type of easement would expire at a certain time or upon a certain event, such as the death of the person who benefits from it.

Tip

Ms. Smith could verbally give Mr. Scott permission to cross her land. In that event, Ms. Smith would not grant an easement, but she should talk to a lawyer to confirm that 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 broad part of the property or only a certain portion.

A right-of-way is a type of easement that allows someone to travel through another person's land to get somewhere else. It can be offered to one person, several people, or the public.

There are two types of easements: the easement in gross and the easement appurtenant.

Easements in gross are given to people or companies for a specific purpose. If property ownership is transferred through sale or other legal methods, a new easement agreement must be made.

Easements appurtenant are attached to the land, not the person. Rights-of-way are typical of this type. This is because they are passed on with the property.

Other Types of Easements

There are some other types of easements that give certain entities the right to engage in certain activities on land:

  • Utility easements
  • Prescriptive easements
  • Easement by necessity
  • Private easements
  • Stormwater management or development easements

Utility easements are the most common type of easement. These give utility companies the right to use a certain portion of the property for utility purposes.

Prescriptive easements are created when someone has been using a portion of your land without your permission. This gives them the right to keep using your land, as long as the length of use meets certain requirements.

Time

Each state has its own laws about prescriptive easements. The statutory time limit could last between 10 and 20 years.

An easement by necessity occurs when someone has a legal right to use a section of your land, as long as there is a valid need for it. This often happens when there's a home or property with no direct access to a road, except through another property.

In the example above, Ms. Smith granted Mr. Scott a private easement. 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 it might be allowed to maintain a waste-management system.

What Are the Effects of Easements?

The landowner who grants an easement can't build structures within a prescribed area surrounding it, and they also can't use fencing to hinder access. Any activity that blocks the use of the easement is prohibited.

Easements create problems for property owners when they don't bother to find out whether easements exist and where they are. For instance, they might install fencing and then wonder how the fence can be torn down by the utility company when it needs access to something.

Important

You should know where all easements are, as well as what restrictions are associated with them before buying a property. Be sure to look over the title commitment or preliminary title report before closing.

Can Easements Affect Property Values?

Easements can affect property values, but if you buy land that already has an easement, the land's value includes the easement as well. If someone buys an easement on your land, 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 do not affect property value in most cases. In many situations, the easements are along the edges of the land and are only for utility management.

How Do I Know Whether My Property Has an Easement?

Not every easement is included within property deeds. Some easements are recorded as part of public records. One simple way to identify easements is to get the property records from the county courthouse and review them.

Note

You can talk to a real estate lawyer to find out how, when, and whether an easement can be terminated.

If you don't find anything, walk around the property you plan to buy. Look for stormwater drains, tire tracks, evidence of someone else using the land, or any other signs that an easement might exist.

You can also ask the title company to give you a copy of any easements it has. Not every title company provides copies of recorded easements. Title companies are often only required to notify owners that an easement exists. Easements are also not covered by title insurance.

In some cases, easements are excluded on Schedule B of your title policy commitment or preliminary title report. In most cases, there is a note that includes where to find the documentation.