For many homebuyers, an easement is anything but easy to understand.
This legal term often surfaces during the title search, after your offer has been accepted. That’s when you may learn that someone else has the legal right to use part of the property—whether for access, utilities, or something else entirely.
Wait. Share the home you’re buying? It’s not as scary as it sounds. Here’s what to know about easements, how they work, and why they matter.
What is an easement?
An easement is a legal right that allows someone who is not the property owner to use a portion of the property for a specific, limited purpose. Easements do not transfer ownership, they simply grant access or usage rights. Most commonly, easements are used to give neighbors, utility companies, or municipalities access to part of your land to perform a function such as crossing it to reach another property, running power lines, or maintaining infrastructure.
Easements are legally binding, typically recorded in the property’s deed or title, and can remain in effect even after the property is sold. They can be created by written agreement, necessity (such as landlocked property needing access), or long-term use (known as a prescriptive easement).
Common types of easements
Easements come in many forms. Here are some of the most common you may encounter:
Right of way
This is where a neighbor may need to pass through the property via a driveway to access the main road.
Or, say Property A and Property B share a driveway.
“It’s primarily located on Property A’s land, but it splits and also goes off to Property B’s land. The owner of Property B can get an easement, which grants him legal access to the driveway, but the owner of Property A still maintains ownership of the land itself,” says Realtor® Kelly Hurley with Re/Max Advantage Plus in Minneapolis-St. Paul, MN.
Other right-of-way easements might be for a pathway through your property to a neighborhood playground, trail, or lake.
Utility maintenance
This easement is typically granted to utility companies to run power and cable lines on a property.
It’s particularly common in rural towns or newly developed cities that are tying into existing power lines, says David Nelson with the Imperial Home Team in Minneapolis.
HOA or condominium
If you live in a condo or home managed by a homeowners association, odds are these institutions own much of the property—or at least the public areas—while residents have rights to pass through.
How are easements created or removed?
Easements are created when property owners are approached for permission to use their land. If an agreement is reached, it will be set in stone with a legal document such as a deed. While the homeowner who originally grants the easement may be compensated, subsequent homeowners typically are not, although the length of an easement may vary.
Here are the two main types:
- ‘In gross’ means that the easement applies only to the particular person you’re dealing with at that moment, whom you have decided to let access the property. When that person sells the property, the future owner is not included in the easement particulars.
- ‘Appurtenant’ is an easement that is attached to the land and therefore is part of any sale and thus transferred to the new owner.
An easement can be terminated if a court finds that it is being accessed beyond reasonable use. This is usually invoked when an easement substantially interferes with the landowner. For example, if an easement has been granted for beach access, but a new highway and parking lot bring in more crowds than were intended, it can be contested in court.
Since the property is owned by one person, this person typically assumes all costs for maintenance, insurance, property taxes, and the like, Nelson says. However, neighbors may decide to share costs or duties. Although there may be an implied arrangement, it’s always wise to get the particulars down in a written document, which can help prevent sticky situations when a property is sold.
As always, consult a real estate agent or real estate attorney if you have any questions about easements attached to a property you are considering and how they will affect you.
Additional reporting for this article was contributed by Allaire Conte.
