What Is an Easement? Everything You Need to Know

 Good for you.  You’ve found your perfect home and you have signed a contract for its purchase.  Your attorney has asked us to search the title and provide a Commitment for Title Insurance.

 You may or may not see the title commitment, but your attorney will review it for any defects or encumbrances on the title.  One of the items your attorney might encounter is an easement.

 An easement is a legal right given to another to use part of your property for a particular use.  For example, the town may have the right to place and maintain a sewer pipes that runs through your property.

Dominant and Servient Estates

Easements actually consist of two parts.  The party who uses the easement and the party who is burdened by the easement.  In legal terms, we call them the dominant estate and servient estate. The dominant estate is the party that benefits from the easement,  in the above example, the town. The servient estate is the party, you, the homeowner, that must allow the town to use your  property.

The law recognizes several types of easements.  Let’s try to define them.

 I.                 Easement Appurtenant

An easement appurtenant is an easement that is tied to the property itself. An easement appurtenant is often referred to as “running with the land,” as it remains in place even when the owners change. It’s an easement that benefits the property. An example of an easement appurtenant is a driveway that offers access to a street through a property that would otherwise block you in. When that property is sold, the new owners must allow you to use the driveway because the easement stays with the home.

 II.              Easement in Gross

An easement in gross is owned by a specific person or entity, not the property itself. It benefits the person who holds the easement. The most common easement in gross is one given to utility companies by developers to provide service to a community.  The holder of this easement does not have to own any property next to yours or near yours.

 III.            Easement by Prescription

An easement by prescription, also referred to as a prescriptive easement, is created when a person continuously uses another’s land for a long period of time as if they had an easement. To get an easement by prescription, the following criteria generally must be met:

Continuous use for a specific period of time. That time period varies from state to state.

Open and notorious use. The use of the property must be obvious and observable, not done in secret.

Hostile use. The property was used without the owner’s permission. Hostile does not mean malicious.

Exclusive use. This isn’t required in all states and what constitutes “exclusive use” may differ from state to state.

Here’s an example of an easement by prescription. Let’s say you live on a beach or waterfront property and a neighbor has cut through your land to get to the water. You may not mind so you do not say anything or post a sign indicating your property is private.  20 years later, the neighbor’s property is sold, and you attempt to stop your new neighbor from crossing your property. They could have an easement of prescription to continue to use your property for such activities in the future.

Another, more common, example is the neighbor who unknowingly built her fence 3 feet over their boundary line onto your property. and it was only discovered 15 years later. They may be granted a prescriptive easement since they meet all of the criteria above.

 A court proceeding is required to establish a prescriptive easement.

 IV.            How to legally create an Easement

 

If an easement needs to be created, it will happen in one of the following ways:

 Express Easement

An express easement is the most common method of easement creation. It can be created by deed, or by the execution of an easement agreement.  Both documents have to be legally executed and then recorded in the land records.

 Implied Easement

Unlike an expressed easement, an implied easement is neither written down nor documented because it’s obvious, or implied, that the property would need to be used for the enjoyment and use of the other party.

 Think of the above situation where a parcel of property is cut  in two width-wise and blocks street access to the  rear portion. The law presumes that when property is divided, street access is provided to the blocked portion. So, when the front property is sold, it is implied that you can still use it to get to and from the street.

 Easement by Necessity

An easement by necessity, as the name implies, is created by law out of necessity, instead of by an agreement between neighbors. It’s usually created when the only reasonable and practical access to the property is through another’s property and an implied agreement cannot be reached. Once there is a new way to access the property (for example, if a new street is created), the easement can be terminated.

 Rules of Property Easements

Property easements are valuable as they can provide you or someone else the legal right to use a certain piece of land. They can benefit you as a homeowner or force you to carry the burden of others using your property. If you come across an easement in your homebuying experience, here are some pointers.

First, if the home has an easement, don’t panic just yet. While it could be an annoyance, it could very well benefit you as the homeowner. Or it could be an entirely neutral experience. When buying a home with a property easement, find out the purpose of the easement and make sure you understand how it could impact your homeownership experience. For example, if the easement is for a utility company to lay underground lines on your property, you may not be able to install that inground pool you were hoping for.

 Of course, it might not even matter. If it is an easement appurtenant, it will stay with the property and you’ll need to deal with it. However, if it’s an easement in gross, it may not transfer over with the sale of the home.

 Abiding by an Easement

An easement is legally binding and must be followed. If it’s not, you could be sued. Again, think of the neighbor who can only access the street through your property.

 To properly abide by an easement and ensure the other party is doing the same, make sure you understand each party’s rights. If you have questions or seek to understand more, consult a real estate lawyer.

 Challenging an Easement

An easement can be challenged, but it’s an extensive process that may involve going to court. The process could be easier if the easement holder agrees to terminate the easement or if it has an expiration date. Otherwise, you may end up in court, in a complex dispute that often carries a lot of emotion if it involves neighbors. We recommend consulting a real estate lawyer to learn more about challenging an easement.

 At the end of the day, do not try to deal with a problematic easement by yourself.  Always seek competent legal advice.

We are the New Jersey title insurance agent that does it all for you. For your next commercial real estate transaction, house purchase, mortgage refinance, reverse mortgage, or home equity loan, contact us, Vested Land Services LLC. We can help!

For your real estate purchase or mortgage refinance or

if you have questions about what you see here, contact

Stephen M. Flatow, Esq.

Vested Land Services LLC

165 Passaic Avenue, Suite 101

Fairfield, NJ 07004

Tel 973-808-6130 - Fax 973-227-0645

E-mail sflatow@vested.com

@vestedland

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