Easements

Mike Capelle, Broker/OwnerMike Capelle, Broker/Owner

Consider this hypothetical: A man named Mark decides to purchase a parcel of land in a remote, mountainous area. He looks forward to enjoying it as a getaway retreat. But there’s a problem. It turns out he can’t access the property without going through his neighbor Sandy’s land, and no easements are in place to allow that access.

Welcome to the wonderful world of easements. In this example, if Sandy refuses to let Mark pass through, legal intervention may eventually be necessary to enforce his easement — Mark’s right to use someone else’s land in order to access his own.

A person who has an easement does not actually own the land. Rather, he or she possesses a right to do something on that land. The law recognizes an array of different easements, which allow usage on, under, over, or across a property, and can be permanent or limited in duration, and broad or narrow in scope. Easement negotiations can be complex, and legal input is generally recommended.

Most easements are granted to utility and municipal companies for the purpose of running power, cable, water, and sewer lines, but they are frequently used by individual landowners as well.

Common usage easements prevent a landowner from erecting anything on a portion of his or her land that would preclude the easement owner’s ability to access his or her own property, run utilities, or even enable livestock grazing. An easement can also prevent a landowner from installing a tall fence, tree, or structure that might interfere with a neighbor’s view or access to solar power.

One of the biggest problems that occurs with an easement is when a future owner of a property is unaware of the existence of an easement, and later learns that the use of his property is constrained. For example, someone buys a residential property that has some type of utility or sewer easement in the backyard. He then tries to build a pool, shed, or deck, but discovers that much of his backyard is not buildable due to the easement.

Ideally, an easement is created by an agreement between two or more parties. You ask your neighbor, and he or she grants permission. Or you offer to purchase the easement for an agreed-upon price. To complete the arrangement, an easement deed is recorded.

Prescriptive Easement

If no easement agreement is in place, one or more parties can create a prescriptive easement through repeated use of an easement over a period of time. For example, if Mark continuously drives over Sandy’s property for five years with her knowledge but without her permission, his consistent land use — even if considered adverse or hostile — could result in a claim that he possesses a prescriptive easement.

Easement by Necessity

An easement by necessity occurs when one party must use the other party’s property to access the first party’s property. If Mark has absolutely no other way of reaching his mountain retreat, and if he and Sandy simply cannot come to terms, he may be able to obtain a court order that gives him possession of an easement by necessity across Sandy’s property. He may even consider filing a lawsuit to protect his easement.

On the flip side, Sandy may determine that Mark is abusing his easement rights and causing damage to her property. In such a case, she would be in a position to file a lawsuit against Mark.

Proceed with Caution

Easements are anything but easy. While you and your neighbor may come to a verbal agreement, it’s important to keep in mind that easements are more than promises. They are part of a property’s legal records.

If a neighbor wants an easement from you, it’s best to proceed with caution. In some circumstances, an easement can lower the value of your home simply because it limits what you or a potential buyer may do with the property. On the other hand, an easement may be mutually beneficial; for example, Mark needs a road easement to access his property over Sandy’s property, and Mark and Sandy come to an agreement for routing the road so that Sandy will also be able to use it to access the back side of Sandy’s property.

As the owner of a constricted property, you may find that monetary compensation is appropriate. Do you want a single cash payment for the other owner’s usage, or do you want the easement owner to pay you over a period of time? Your attorney can help you determine an appropriate payment for the inconvenience.

Beyond the monetary arrangement, it’s important that both parties clearly specify the terms of usage. Sandy may finally agree to let Mark use her property to access his, but that doesn’t mean she wants to find Mark and his kids playing ball in her backyard.

If Mark needs to dig up Sandy’s property to install water or sewer lines to the new home he’s building, it’s in Sandy’s best interest to make sure the easement specifies that her property is returned to its original condition after any construction and that any breaks or problems with Mark’s new lines are his responsibility.

In an ideal world, Sandy would respect Mark’s need to utilize her property, and Mark would make every effort to cause minimal disruption. But, realistically, we live in a world full of disputes, which is why we have property access laws and lawyers to help us navigate them.

— Source: Zillow Blog

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