An easement is the certain right to use another person’s real property for a stated purpose without possessing it. An agreement of this type requires at least two parties. The creation of an easement is handled the same way as other documents of conveyance. Easements can also be written into a deed of conveyance, or may also be transferred with the deed. The three major types of easements are appurtenant easements, easements in gross, and prescriptive easements.
Easement details should be included in the body of a deed if they will remain in place after the land is sold (called “running with the land”). When purchasing a piece of property, buyers should be aware of any easements on the land. Easements can create restrictions for the granting party, prohibiting where someone might build a fence or add a structure to their property.
An easement can have a negative effect on property values in a few different ways. Some owners may dislike the idea that others have a right to use their land. Easements can allow utility companies to erect power lines or bury gas pipelines across a tract of land. This could possibly affect resale values of a property if people are uncomfortable living so close to power lines, or if the power lines are viewed as unsightly.
Like all real estate deeds, there are many different types of easements for many different scenarios. The three most commonly encountered types are easements of appurtenance, easements in gross, and prescriptive easements.
EASEMENT OF APPURTENANCE
An appurtenant easement conveys the right to use adjoining property that transfers with the land. The owner of the parcel of land that benefits is the dominant tenement, and the servient tenement is the one providing the easement. Unless the owner of the dominant tenement releases it, the appurtenant easement transfers with the land, though this may not be written expressly into the deed. Unless it is otherwise indicated in the document, courts will assume that easements are created to last forever. However, if an easement is created for a temporary purpose, such as construction, the limited duration should be specifically stated in the paperwork.
Appurtenant easements can provide pathways across two or more pieces of property, or can allow someone to fish in a privately owned pond. This is referred to as an affirmative easement. If A is able to use B’s pond for fishing, A has an affirmative easement from B. Many times, a right-of-way easement can benefit the property, as well as the individual. For instance, imagine that Mr. Jones owns a tract of land that borders a large national park, but his neighbor, Ms. Smith, does not. In order to avoid trespassing, she would have to access the national park by walking or driving to an entry point every day. Instead, Mr. Jones grants permission for present and future owners of Ms. Smith’s land to cross his land in order to get to the national park. This becomes part of the deed for both parties.
EASEMENT IN GROSS
An easement in gross is often commercial in nature. There is no benefit to the land; instead the benefit goes to an individual, company, or organization. For example, easements in gross are used by utility companies so that they can run wires or pipes through someone’s property. These easements generally do not always transfer with the land, and if not, they must be renegotiated with the new owners.
A prescriptive easement is an easement upon another person’s real property, acquired by continued use without permission of the owner for a period of time provided by state law to establish the easement. Prescriptive easements do not show up on title reports, and the exact location and/or use of the easement is not always clear.
A prescriptive easement is created when someone uses land for access, such as a driveway or a shortcut. Many times, a neighbor simply begins using part of the adjoining property. After a statutory time requirement is met, the trespasser gains a legal right to use the property, and thus the prescriptive easement is created. A prescriptive easement can be prevented if use of the property is granted by the owner. The owner’s permission prevents the trespasser from claiming a prescriptive easement. This permission can also be implied by the owner, such as in the case of neighbors who are on friendly terms. This is called ‘neighborly accommodation.’ This prevents new owners from moving in and claiming that they have inherited a prescriptive easement on the use of land.
An owner who allows someone to trespass for years without giving permission or taking action will lose the right to the land. In this case, a prescriptive easement will be granted. If the trespasser is paying property taxes, and if they have continuously been accessing the land for a number of years prescribed by the state, courts will often rule in favor of a prescriptive easement. However, this does not mean that landowners are left with zero options or protection.
Landowners should be attentive to their own property and its boundaries. If an owner is concerned that someone has a possible claim to their land, they should check local property tax records to see if anyone else has made tax payments for the property. Putting up ‘no trespassing’ signs to warn people to stay away. This alerts trespassers that the land belongs to someone else, but this is not protection against adverse protection for the property owner, unless the state law requires the trespasser to believe that he is on his own land in order to make a claim for a prescriptive easement. Periodic inspections of the land conducted by the property owner are advisable.
In some cases, land owners discovered that posting a sign that grants public use of the land protects them from losing a property interest to the public as a whole. Giving someone written permission to use the land can also help to secure ownership and to prevent prescriptive easements. Say that neighbor A has planted a garden that extends into neighbor B’s property. Neighbor B should tell neighbor A that they are on their land, and if A is okay with B using it, A can write out a claim stating that B has the permission to use the land, but has no ownership rights. This claim should also state that A has the right to revoke the permission at any time, and if guidelines are necessary for the use of the land, these should be listed in the claim. Additionally, land owners can offer to charge rent to the trespasser, call the police, or hire a lawyer.