Are you planning to add on to your house, buy a home or build one? If so, it’s vital to know the easements on your property.
Because the two-story addition you’ve paid tens of thousands of dollars to complete may violate your neighbor’s view easement.
Or, your newly built garage could end up sitting above underground pipelines that a utility easement protects.
In both cases — even though you built on your own property — you’d be guilty of trespassing, and the remedy would be both costly and heartbreaking.
Here’s what you should know about easements to avoid making such mistakes:
Some easements are in writing, but many aren’t.
Express easements are in a deed or homeowner’s association agreement and usually show up in a title search. If an easement is in writing, make sure to obtain all original documents that describe where it’s located, how large it is and the limitations it places on the property before you commit to buy or build.
Implied easements aren’t written into a document, but are still legally binding. And they can only result when one piece of land has been previously subdivided into two lots. Easements that are implied may require a bit more investigation to uncover. So always ask specific questions about the unwritten easements on a property and do an in-person evaluation before you buy. Often, easements of necessity — which we’ll describe later in this article — fall into this category.
Easements are classified as either affirmative or negative, depending on the way they affect your property.
An affirmative easement gives your neighbor the right to use part of your property for a specific purpose. For example, if your neighbors must use your driveway to access their house from the main road, this would be an affirmative easement.
Alternately, a negative easement would prevent you from using your property in a way that would normally be legal. For example, if your neighbors have a solar easement, it would prevent you from planting trees or building structures. Doing so would block sunlight from reaching their solar panels.
Some other examples of negative easements are conservation and view easements.
Easements by necessity, also called appurtenant easements, benefit a plot of land, rather than an individual. Take, for instance, the above case of your neighbor’s easement on your driveway. The easement is there to ensure access to a property that would be inaccessible without the use of your driveway.
Another example of a necessary easement is beach access. For example, if a piece of land lies between a public road and a public beach, the land will have an easement by necessity to allow people to walk through.
An easement, by necessity, always transfers when you buy or sell land — whether it’s in writing or not.
An easement in gross benefits a person or entity, instead of a piece of land.
Here’s where utility easements come into play. A utility company has run electric lines across your property or gas lines underneath it at some point. And the utility company that ran those lines will still have an easement on your property, even though you aren’t the one that granted it.
An important note to remember about utility easements is that a utility company cannot transfer an existing easement to another person or company without your consent.
Also, it’s important to understand that easements in gross are only transferable and legally binding when put into writing. In other words, there’s no such thing as an implied gross easement. So just because a previous owner verbally allowed a neighbor to cross the backyard to get to a fishing pond doesn’t mean you must do the same when you buy the property.
Negative easements also fall into this category. So, if you’re the one building a house with a beautiful view, you may want to get a view easement in writing to ensure your view stays unobstructed.
Because it’s not always simple to challenge an easement, be sure to research and understand any easements that are attached to your property, even if they aren’t on this list, and understand the complications that come with them.
And remember, an easement isn’t always a bad thing, but not knowing the details of your home’s easements is.