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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