Does Your Property Have An Easement On It? How To Find Out

Easements and Right-of-Ways

An easement allows access to property without giving the other party ownership. Many easements are for utility, maintenance or emergency access. A right-of-way allows others to go through your property. For example, California has hundreds of unmarked areas adjacent to beachfront homeowners’ properties that provide right-of-way access to public beaches.

Easements are usually assigned for a specific use with specified parties granted access to the property. Right-of-ways don’t define who can pass through the property. Both are similar and described on the same property deed.

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How Might Private Easements Affect My Property Ownership Rights?

In addition to utility easements, a property owner may sell an easement to someone else—for example, to use as a path or driveway or for sewer or solar access. Private sewer easements are often sold when an uphill house is being built, so the pipe from the house to the street can slant properly—sometimes right under your property.

If your title contains private easements, you should get copies of the actual easement documents. You need to know where the easements are and what uses they allow. If a solar access easement has been sold to a neighbor, for example, you could find that you are severely limited in what you can build or grow on your property, because you can’t block sunlight to the neighbor’s solar collectors. If you are unaware of the terms of a private easement, you could unknowingly interfere with the easement rights and be liable for damage.

Any private easement referred to in your property papers should have a reference number, such as a book and page number. Your county clerk can help you locate it in the public records and obtain a copy to keep with your deed.

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.

Other Means of Finding Easement Information

For accurate information about public land easements, private property easements and shared parcel use, a property owner or potential buyer should head to the county clerk and look at the property’s public records. Legal records of easements in gross and easements appurtenant can be found with transfer deeds and other documents related to a property. Finding out whether there is a prescriptive or implied easement on a property can be trickier because proving that this type of easement exists requires the easement’s user to prove that it fits the criteria for a legal easement, and this criteria varies from state to state. Prospective buyers concerned about these kinds of easements can work with real estate lawyers to determine not just whether easements are present on a property, but also their validity.

Another source of information about utility easements is the utility companies themselves. Property owners and prospective buyers can contact utility providers and request information about existing easements on specific parcels of land.

Individuals considering buying property can also seek easement information from their title insurance providers. A title insurance provider verifies real estate titles and provides owners and prospective owners with information about liens, easements and other issues about their properties that could lead to lawsuits and title disputes.

What Are The Different Types Of Easements?

There are many different types of easements, and each one can mean different things for your home. Here’s an overview of the four different types of easements you’ll commonly encounter.

Utility Easements

A utility easement is created by state or local law, and it gives utility employees the right to access infrastructure located on private properties. Utility easements are sometimes categorized as affirmative easements because they give the utility company legal access to your property, but only for a specific use. When you purchase a new home, it’s common to find preexisting utility easements on the property.

While this may sound like a troublesome situation, utility easements are beneficial to most homeowners.  If you want your home to have running water, electricity, cable and sewer systems, then you’ll need a utility company to manage these services.

When there’s a problem, your utility company will need to access your cables or sewer system to make repairs. This type of easement doesn’t give utility companies free rein to do whatever they want on your property. However, they may be able to install new equipment as long as it’s for the good of the community. This is legal regardless of whether you agree with their decision to make changes.

Some utility easements can even put limits on what you can do with your property. For instance, you may be prevented from planting trees or installing any equipment that could interfere with local power lines.

Private Easements

Private easements are property rights that can be created and sold or given by the property owner to another party. For instance, let’s say your neighbor wants to access your land to install solar panels. You have the right to either grant access or refuse to sell a private easement.

Where private easements become tricky is when they have the potential to affect future homeowners. For example, if you grant your neighbor a private easement, this can affect anyone you sell the home to in the future. That’s why it’s always a good idea to check if there are any private easements on a property before buying a home.

Private easements may not be a problem, but depending on the terms, they can limit what you’re able to do with your property. Private easements should be listed on the title.

Easements By Necessity

Easements by necessity are created for those situations when another individual must access your property. These will sometimes be called access easements and are created because of the government’s long-standing interest in making the land productive.

An example would be living in a rural area and your neighbor is landlocked and can only access the road by crossing your property. In this situation, an easement by necessity would be created, and your neighbor would have the right of way.

You don’t have the right to stop this type of easement because it would cause an unnecessary burden to your neighbor. You’d be negatively impacting your neighbor’s right to access the main road.

Prescriptive Easements

A prescriptive easement is a property right granted to someone who doesn’t own the underlying property. The easement is created because the non-owner had already been using the property in a hostile, open and notorious manner for a period of time as defined by the laws of the property’s state.

Suppose that your neighbor starts parking in your driveway without your permission. You don’t stop them, and they continue to do it year after year. As unfair as it may seem, by illegally accessing your property, they can gain a right to access it. That’s because the court could see your failure to stop them as an act of concession on your part.

If you feel like someone’s repeatedly trespassing on your property, it’s essential to act quickly. Failure to act could result in the court granting your neighbor a prescriptive easement to access a portion of your property.

What happens if you build on an easement?

Generally, you can build on easements as long as the building doesn't interfere with the purpose of the easement. You may need to seek permission before building or even digging in a utility easement, though, so be sure you check with any interested parties to avoid any issues.

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