The Real Estate Easement: A Guide and Glossary

Image of a plat map for real estate showing an easement. Captioned: The Real Estate Easement: A Guide and Glossary

An easement is a right to use another’s land for a specific purpose not inconsistent with the landowner’s simultaneous right to hold the same property. The word is derived from the Old French term aisier: to assist. This legal right to use land that is not one’s own can be acquired in several ways: 

  • By grant (owner permission).
  • By prescription (longtime use).
  • By necessity. The law protects access; a property without street access would be practically useless. Thus, the landowner must allow necessary access.

A state’s Statute of Frauds typically requires that transferring any interest in real estate, even a grant of an easement, is only made binding through a signed, written agreement. Yet in some cases an easement is implied. Because the law protects access, a court may find access granted by implication, depending on the facts of a given situation.

Uncovering Valid Easements

Homeowners and prospective buyers often want to know if easements affect their property, or property they might buy.  

Although an easement rarely decreases a property’s overall value, a property owner cannot obstruct it. Buyers should be on guard, because a property might be touted as big enough to accommodate an improvement, but an easement could make that selling point moot. Easements have stopped many a patio, pool, and fence from being built, and many a tree from being planted.

Prescriptive easements can be found by observation: someone must keep “openly” using a part of another owner’s land without permission. Recorded easements can be found in the property deed in the closing paperwork. Before the sale, check:

  • The title insurance report ordered by the real estate agent.
  • The grant deed, or documents recorded separately and filed with the county. The county courthouse can indicate the office or department to contact.
  • A property survey, which includes the location of utility company easements. Utility companies also hold information on access for emergencies and routine maintenance.

Pro tip:  The buyer should order a preliminary title report to find grants of easements made by prior owners. Be aware that the easement itself may appear only in the chain of title of property belonging to the user of the easement, and not in the landowner’s chain of title.

Glossary of Terms

Agricultural preservation easement: The state’s department of agriculture may pay some landowners to obtain easements that conserve land for farming or the preservation of wooded areas in perpetuity, the way this sample Maryland deed of easement does.

Appurtenant easement: An easement created to benefit another parcel of land. The land burdened by the easement is the servient tenement; the land that benefits is the dominant tenement. Details can be found on the property deed. Appurtenant easements can supply road access or even scenic views. Easements by necessity, such as encroaching driveways, are common examples. Properly drafted appurtenant easements run with the land. The benefited parcel carries the easement over to all subsequent owners.

Easement in gross: An easement not specifically intended for the adjacent property owner. Must be properly recorded. Details can be found on the property deed. Examples are typically commercial: an easement to a utility company for power lines, energy projects such as solar or wind farms and pipelines. Also described on the property deed is a right of way for general use. Examples include conservation easements and beach access. These easements may not be obvious to a buyer, but owner’s title insurance may protect against diminished value.  

Friendly accommodation: If owners of adjacent homes are on friendly terms, one might permit access to the other. This does not create an easement that runs with the land. That is, a new owner cannot assume a previous owner’s friendly accommodation without new permission from the landowner.

Perfection: Formal recognition. A user of an easement may bring a lawsuit to perfect a prescriptive easement. For example, the court can perfect the easement for a landlocked neighbor who demonstrates open use of an access corridor against the interest of the landowner, continuously, over the statutory period of years. 

Prescriptive easement: Legally valid easements by prescription form through “hostile, open, notorious, and continuous” use. The words may have a villainous ring, but they simply mean someone has used or moved across a parcel of land owned by another (for example, driving or parking over the edge of the property line, or using a shortcut), regularly, without having the owner’s permission or consent. “Open” and “notorious” means the use is not secretive, but clearly visible. “Hostile” means it occurs without the landowner’s permission. “Continuous” means regularly, over a minimum number of years. No payment of property taxes is necessary to acquire this use. After a statutory time period (anywhere from 5 years to 30, so check state law), the trespasser(s) can claim a legal right to use the property. Should a new owner attempt to obstruct the use, a quiet title lawsuit can be brought to perfect the easement.

Private easement: A homeowner may sell an easement. For instance, private solar access or sewer easements may be sold so the structures can slant well or be easily accessed. Private easements restrict the servient property owner from blocking access or sunlight. Improper interference with someone’s existing easement rights can subject the landowner to legal liability. 

Public easement: A government might dedicate certain areas to public access. Alternatively, years of public use can create paths that cross private land. Some landowners hoping to protect their interest from being legally lost to “hostile” public use have posted signs granting public use of the land.

Utility easement: Described in the certificate of title or property deed as a utility easement as shown on the map and plat of record. Utility easements are common and do not impact property value, but they do require continual accessibility to the company.

The End of an Easement

At the first notice of “hostile” use, an owner should act to prevent a prescriptive easement from ever taking hold. The owner can ensure the other person’s use is not “hostile” by voluntarily granting permission. If the landowner affirmatively permits the use, the user is not a trespasser, and may not claim an easement by prescription.

Alternatively, the owner may need to file a quiet title action, in order to avert the burden of a prescriptive easement.

Ways to end an easement include:

  • Release. An easement can be terminated by a quitclaim or grant deed. The deed should be recorded.
  • Merger. When one owner acquires both the served and burdened parcels, the easement ends.
  • Destruction. Complete loss of property renders any easements invalid.
  • Forfeiture. The easement holder’s abuse of easement rights may invalidate it. Courts determine forfeiture based on the facts of the case.
  • Interference. The landowner permanently obstructs the easement, reclaiming the land by prescription.
  • Abandonment. The user shows a clear, obvious intent to abandon all use of the easement, such as physically blocking it off for a statutory period.

Final Pro Tip

When obtaining or preventing an easement, seek the services of a lawyer and title company. Easements involve complex issues, such as creditors’ consent, inheritability, the scope of permitted use, and allocation of maintenance costs. If you believe someone is trespassing on your land, seek counsel from a local attorney who is well-versed in real property law in your state, and familiar with pertinent case law. Case-specific legal advice is particularly valuable if the easement is not recorded in the title documents.

Supporting Reference:

Napa County, CA