The complexity of real estate law can be overwhelming, especially in understanding the fine details of property rights. One such issue that frequently arises in real estate transactions is that of an easement appurtenant. This guide will explain in simple and understandable terms what easement appurtenant is, how it affects property ownership, and some key considerations a buyer and seller should keep in mind.
An property easement is a legal right given to a non-owner to use another person's property for a specific purpose. In other words, it is the limited right to enter or use the land of another person. Easement appurtenant is that type of easement which runs with and binds to the land itself, rather than with and to an individual or entity.
It serves to benefit an adjacent property, called the dominant estate, by giving it access or the right to use over the property that is burdened by the easement, called the servant estate.
It is important to know the difference between easement appurtenant and easement in gross. While an easement appurtenant is connected with the land, an easement in gross is not aligned with the land but instead bestowed upon a person or company. It serves the individual holder, rather than the land itself.
Easement in gross may be transferable if explicitly allowed in the agreement*.
Example:
Easement Appurtenant: A shared driveway between two neighboring properties, allowing both owners access to their respective lots.
Easement in Gross: The right given to a utility company to install and maintain power lines across private property.
There are several ways of creating easement appurtenant. Among the most common methods of doing so are:
Express Easement: This is an agreement in writing between property owners. It's usually in the deed of conveyance or in an easement agreement that describes how the easement is granted.
Implied Easement: Arises when a property is divided, and an existing use requires entry over one parcel to serve another. For example, if a person's only access to a road is by way of his neighbor's property, he may be entitled to an implied easement.
Easement of Necessity: Arises when a property becomes landlocked due to a land division. Courts may grant this easement to ensure the landlocked property has access.
Prescriptive Easement: This form of easement is created by the continual and open usage of another party's land without permission for the period of time designated by a state. Should the usage meet the legal criteria, the court may, in turn, grant the easement.
Easements appurtenant have strong implications for owners of the property, both from a buyer and a seller's perspective.
For Buyers:
Due Diligence: Before purchasing a property deed, buyers should carefully review the deed and any relevant documents to identify existing easements. Understanding the terms of the easement is essential, as it can affect property use and value.
Restrictions: The easement may be subject to some restrictions on the use of the property by the buyer. For example, an easement for a utility company could prohibit construction or landscaping activities in the easement area.
Property Value: Depending on its nature and scope, an easement appurtenant can affect the value of the property. For instance, an easement allowing access across the property to a neighbor could decrease its market value.
For Sellers:
Disclosure: There is a legal requirement for sellers to disclose any easements affecting their property to potential buyers. Failure to disclose can lead to legal issues.
Negotiation: In many cases, sellers may have to negotiate terms of an easement with potential buyers, especially if the easement impacts property use or value significantly.
Besides easement appurtenant and easement in gross, other common types of easements include:
Although easement appurtenant is generally perpetual, an easement may be terminated in specific instances. Some common ways that an easement can be terminated include:
Consult a real estate attorney: In case of complicated issues arising from the easement, it will be important to consult a qualified real estate attorney. They can explain rights and duties, negotiate easement agreements, and resolve potential disputes.
Encroachment vs. Easement: An encroachment is an unlawful extension of a structure or object onto the property of another. Though different from an easement, an encroachment can give rise to a prescriptive easement if not timely remedied.
Due diligence is essential: Both buyers and sellers should conduct thorough due diligence to identify and understand any easements associated with a property. This involves reviewing property records, surveys, and consulting legal professionals.
Can a property owner block an easement: Generally, a property owner cannot block or interfere with a legally established easement. Doing so may violate the rights of the easement holder and lead to legal action.
How to check for easements covenants and restrictions on property: To check for easements, covenants, and restrictions on a property, review the title report or deed, which typically lists these encumbrances, or search public records at the county recorder's office. You can also consult the plat map, property survey, or homeowner association (HOA) documents for additional details. For a comprehensive review, consider hiring a title company or real estate attorney to identify and interpret any legal encumbrances.
What are the 3 types of easements: The three main types of easements are easement appurtenant, which benefits a neighboring property; easement in gross, benefiting an individual or entity without tying to property ownership (e.g., utility lines); and easement by necessity, created to provide essential access to landlocked property. These easements grant specific use rights while the underlying property ownership remains with the landowner.