Facts About Easements and Rights-of-Way
edited by Elizabeth Weintraub, Home Buying / Selling Expert
Easement: An easement is the right to use another person's land for a stated purpose. It can involve a general or specific portion of the property.
Right-of-Way: A right-of-way is a type of easement that gives someone the right to travel across property owned by another person.
How an Easement Benefits a Property Owner
Ms. Smith owns a tract of land that borders the Nantahala National Forest, a popular area for hiking, climbing, rafting, and fishing.
Mr. Scott lives next door to her, but his land does not touch the National Forest. To avoid trespassing, he must access the Forest by walking or driving to a public entry point.
Instead, Ms. Smith grants an easement allowing present and future owners of Mr. Scott's property to cross her land to access the National Forest. It becomes part of the deed for both properties.
An Easement Can Benefit an Individual or a Business Entity
In the example above, a neighbor with a tract of land granted an easement so that neighbors could use the land next door to access a public area. Ms. Smith could grant an easement to another individual to do the same, but without adding it to her deed. That type of easement normally expires at a specific time or event or upon the death of the person who benefits from it.
- An easement may give a utility company the right to erect power lines or bury a gas pipeline across a tract of land.
- A housing development might possess an easement that allows it to build and maintain a water storage facility.
- Both easements above would probably be included in a deed description and remain in place if the land is sold.
How Does an Easement Affect the Person Who Grants It?
The landowner who grants an easement usually cannot build structures within an easement area or use fencing that would hinder access.
Other activities might also be prohibited. Before you purchase property you should know where all easements are located and what restrictions are associated with them.
Not every easement is found on the face of property deeds such as a warranty deed or a grant deed. Some easements are simply recorded in the public records. You might note an easement is excluded on Schedule B of your title policy commitment or preliminary title report. Such a notation would include a reference to the book and page of the recorded easements.
If you don't ask the title company to give you a copy of the actual easement, you might not know precisely where the easement is located or even the reason for the easement. Not every title company automatically provides copies of the recorded easements because notification that the easements exist and are excluded from coverage is often the basic requirement, and the prelim or title commitment fulfills that requirement.
One of the biggest issues we see in real estate are home buyers who purchase a home with the intent of installing a swimming pool. They don't disclose this desire to anyone, and they also don't read the title commitment or prelim prior to closing. If an easement runs across the area designated for a pool, an owner cannot install a swimming pool.
If the owner of the easement discovers a structure built across its easement, the owner can take legal steps to force the owner of the property to remove it.
Can Easements Affect Property Values?
- Several easements on a tract of land might seriously limit the choice of building sites.
- High tension power lines running through an easement near an otherwise great building site can be unsightly. Resale values may be affected since many people feel that living too close to power lines is a health risk.
- Buyers may simply not like the idea that others have a right to use the land in some way, and that objection could result in a lost sale.
Don't assume that because an easement is not currently being used it will never be used. As long as an easement is a part of your deed there's always a possibility that the individual who benefits from it will decide to enforce it.
Talk to an experienced real estate attorney to find out how and when an easement can be terminated.
Edited by Elizabeth Weintraub, Homebuying Expert.
At the time of writing, Elizabeth Weintraub, CalBRE #00697006, is a Broker-Associate at Lyon Real Estate in Sacramento, California.