An easement is a legal right that one party has to use another party's land for their benefit. In layman's terms, it is permission to enter on or use a portion of a property, while not being the owner in title. This right is given to an individual or other entity, referred to as the "grantee," and the property owner who provides this easement is called the "grantor."
Easements are most often created by written agreement, and these documents are usually filed with the county so that there will be public notice regarding the creation of the easement.
Easements are extremely important in enabling various activities and access to fundamental services with deed restrictions. Typical examples include:
Utility easements: These allow utility companies access to your property for the installation and maintenance of power lines, water pipes, or sewer lines.
Shared driveway easements: this serves in allowing neighbors to share a driveway that crosses property lines for access to their respective properties. Access easements provide a route across private property to attain a public space like a beach or park.
Easements may be differentiated as under various categories based on varied factors:
Appurtenant vs Gross Easements: An appurtenant easement serves a particular property.
Public vs. Private Easements: These are easements that grant access to a public entity or the general public, like a public pathway through your private property to a park. Private easements are between private individuals or entities, like the shared driveway example above.
Affirmative vs. Negative Easements: An affirmative easement grants the right to do something on the property, such as laying utility lines or using a common driveway, while a negative easement prohibits something on the property that may interfere with the easement holder's rights.
For example, a negative easement may be used to prohibit property owners from planting tall trees that block a view enjoyed by a neighbor under the easement.
Easements by Grant, Reservation, Implication, Prescription: Easements are created either:
Grant: Where a property owner run with the land, expressly conveys an easement to another party in a written agreement.
Reservation: When a owner of the property sells a portion of their land but retains an easement on the portion sold, when they are transferring ownership.
Implied Easement: This is when the circumstances imply that an easement was intended, even though it has not been explicitly written out.
Prescription: Sometimes referred to as "squatter's rights," a prescriptive easement occurs when there has been continuous use of another's property without permission, for a specific statutory period.
Right of Access, Re-entry, Maintenance:
Right of access easements, also known as right-of-way easements, allow a third party to access or cross the land for specific purposes, commonly used for utilities.
Re-entry easements, often used in new developments, grant the right to re-enter a property to complete unfinished work, such as paving streets.
The easements of maintenance allow access to a property for maintenance purposes, like window washing or utility line access.
You must be aware of any prevailing easements before purchasing any property. Here's how you can find them:
Selling Disclosure: In most cases, it is a legal requirement for the seller to disclose if there is an easement on owner of the property. The purchase agreement or other relevant papers need to reflect this information.
Title Search and Reports: Title companies make searches of easements which apply to a property through public records. This information is compiled into a title report that can offer important insight into the property's legal history.
Property Surveys: An expert surveyor is thus able to create an elaborative map of the property, highlighting its boundaries and easements which may affect it.
Public Records: Easements are usually recorded in the public records of the county in which the property is located. These records are typically available to the public and can therefore be an excellent source for researching easements.
Plat Maps: If the property is part of a subdivision, there may be an easement shown on a plat map - a carefully drawn map of the subdivision.
Restrictive covenants refer to agreements or contracts that in some way restrict the use of a property. They are simply promises that an owner makes to adhere to some rules or even limitations. The major objectives of restrictive covenants seem to assure the protection of property values, stand for standards of the community, and serve to reduce conflict between neighbours. Restrictive covenants are thereby widely utilized by homeowner's associations and also by developers as restrictive instruments concerning land use to attain and sustain aesthetic homogeneity within a community.
Restrictive covenants may pertain to a wide range of aspects relating to property use. Common types include:
Use Restrictions: These covenants outline the extent of activities that can be carried out on the property. For example, a restrictive covenant might forbid running a business from a residential property.
Lease Restrictions: Some covenants impose restrictions on renting or leasing the property. This may include limits on the length of tenancies, the number of tenants allowed, or even a prohibition on renting completely.
Maintenance Requirements: They set property maintenance standards. They might require regularity in mowing the grass, or the condition of fences, or perhaps general property appearance to be kept as per the standards of the community.
Architectural Controls: Architectural covenants provide a uniformity in appearance within a community. They may address the color of a home, the type of roofing that can be used, or how tall a fence can be. They may even go so far as to outline what new construction should look like.
While restrictive covenants are designed to be beneficial to the community, they also carry a number of implications for the owner of the property:
Benefits: Restrictive covenants help to maintain the values of the property because they will exclude unsightly or disrupting activities. They foster a better sense of community because properties will remain better-looking and in conformance with set aesthetic standards.
Drawbacks: These covenants inhibit the right of a landowner to deal freely with his property. They might not be able to do certain things which otherwise would have been within their legal rights to do, such as running a home-based business or choosing specific colors to paint their houses. Secondly, restrictive covenants can be difficult on neighbors and sometimes the HOA regarding disputes over interpretation or enforcement.
They are legally binding and hence can be enforced through litigation, a suit, or fines for violations. On the other hand, the process of removing or modifying a restrictive covenant is cumbersome and usually requires unanimous agreement on the part of the owners whose properties have the restrictive covenant or a court order in favor where the covenant is no longer reasonable.