The homebuyers guide to easementsHomes & real estate
As you drive away from your walk-through of a two-bedroom, two-bath with an island kitchen and a big backyard, you hesitate to use the phrase “Dream house,” but it’s awfully close.
In fact, by the time you get home you’re both so sure you’ve found the one that you fire up a browser and start reviewing offers for home loans.
And then your Realtor calls. “The owner just told me the property has an easement.”
“An easement, huh? Okay. Good to know. Quick question…”
What Is an Easement?
Put simply, an easement gives a person, company, or municipality the right to use your land for a specific purpose.
This may take the form of neighbors being able to cross your property either on foot or by car, or a utility being able to dig up some of your yard to install or service phone lines, power or other equipment.
It’s important to note, however, that an easement only guarantees a right to access and/or use a portion of your property, it doesn’t mean you don’t still own it.
Types of Easements
Easements are typically created by contract—oral agreements are generally not enforceable—and they come in a wide variety of types. Some examples include:
- Easements in gross
- Appurtenant easements
- Prescriptive easements
- Negative easements
- Utility easements
Easements in gross are the easiest to deal with because they cease once the property changes hands.
So, for instance, if the previous owner granted an easement in gross to a neighbor to harvest fruit from her trees that would end as soon as you took possession of the property.
Appurtenant easements, however, remain in place even when a property changes ownership. So if using the previous example, a neighbor “owned” a fruit-harvesting appurtenant easement, they would retain that right even after you moved in.
Prescriptive easements occur when people have been using the property without permission for such a length of time (the amount varies by state) that they essentially earn “squatter’s rights.”
Negative easements prevent you from doing something with your property such as blocking someone else’s view with a fence or second-story addition.
Utility easements, not surprisingly, allow a company or local municipality access to your property to install and maintain equipment.
How to Find Out if Your Property Has an Easement
Easements are typically laid out in the various documentation—titles, deeds, plans, HOA agreements, etc.—associated with a property.
The exception is prescriptive easements which aren’t part of a property’s documentation, so you’ll want to perform your due diligence and review the property, speak with the owner, any neighbors, etc.
Can You Challenge an Easement?
The good news is, yes, under certain circumstances easements can be challenged. The bad news is unless the owner simply agrees to terminate the agreement, you’ll need to go to court.
Some arguments for terminating easements include:
- The original necessity for the easement has ended.
- The easement came with an expiration date.
- The owner of the easement is abusing the terms.
Regardless of the type of easement your property has, if your goal is to end it, you’ll want to consult a real estate attorney.
Should You Look Elsewhere?
That’s a tough call. Obviously, the last thing you want is to end up with buyer’s remorse attached to a 30-year home loan.
Consider that, in the case of a utility easement, if it’s only executed once or twice a year to check a meter or something similar that’s a pretty small price to pay for living in a home you love.
Or if, say, your neighbor has an easement prohibiting you from building a 15-foot-high fence, but you never had any intention of doing so then the easement may as well not exist for all that it affects you.
On the other hand, if it means strangers can traipse across your backyard at all hours of the day and night, or the local power company can park a backhoe next to your bathroom window two weeks out of the year, then, yes, you may want to continue your search.
And as with so many other areas, the more you know, the better your options.
First, determine what type of easement it is and who owns it. Then consult with a real estate professional to review any options for terminating it or what it would mean to live with it.
You might still end up with a home you'll love for years and years, or end up making the smart decision to look elsewhere for a home that has fewer complications.