Easements & Right of Ways
An easement is a legal right to use another person’s land for a specific purpose. This right is typically granted by the owner of the land, and it allows the holder of the easement to use the land for the specified purpose even though they are not the owner. The most common type is a “right of way” easement which is the right of a person to a limited use of enjoyment of the land owned by another person, such right not being extinguishable at the pleasure of the land owner.
The land burdened by the easement is termed the “servient estate” and if the easement benefits an adjacent real property, the real property being benefited is termed the “dominant estate.”
Easements can be a valuable asset, but they can also be a source of frustration and conflict. If you are considering purchasing a property that has an easement, it is important to understand the different types of easements and what they mean.
What Are The Different Types Of Easements?
Appurtenant Easement: An easement which directly benefits the use and enjoyment of a specific parcel of land. An appurtenant easement transfers with the title to the dominate estate unless expressly stated otherwise in the document accomplishing the transfer.
Easement in Common: Occurs when two parcel owners grant each other reciprocal easements. The right or benefit to the owner of one parcel of real estate to use the land of another for a certain purpose with the owner of that parcel having a reciprocal right or benefit to use the other’s real estate for a certain purpose. This easement is appurtenant to each parcel of real estate and transfers with the title to each parcel.
Easement in Gross: The right or benefit to one person over the land of another which does not benefit another parcel of real estate but creates a benefit to the owner of the easement. For example, a public utility easement over one owner’s land which may be used to serve or benefit the owner’s land and also to serve or “benefit” another owner of adjacent land, however the owner of the adjacent land cannot terminate the easement.
Prescriptive Easement: The right or benefit to one person to use another’s land for certain purposes which right is not granted by an agreement but arises from the continued, hostile use of the other’s real property for those purposes. This is an easement created by a form of adverse possession (21 years of hostile use). Certain hostile circumstances must be proven by a lawsuit.
Easement by Necessity: This type of easement typically arises when a person owns property then divides it in such a way that one of the parcels is landlocked. The owner of the landlocked parcel, in order to establish an easement for ingress/egress to the road, must show that, upon the severance of the land from the estate, a use existed that is continuous, apparent, permanent, and necessary. If there is a different way for the owner to access the road then he may be unable to prove that the easement is “necessary.”
Easements for Solar or Scent or View: These are easements for specific and obvious purposes and are sometimes referred to as Negative Easements. These easements may only be created by a recorded agreement between land owners. These easements also are considered appurtenant easements.
Right of Way Easement: This easement is for ingress and egress or transportation purposes and can be to the benefit of an adjoining land owner or to a governmental entity.
Easements are an insurable interest for purposes of title insurance. However, Easements by Prescription or Necessity are not insurable until they are formally created by a judgment of a court of competent jurisdiction and the time for an appeal from the judgment has expired.
No matter what type of easement you are dealing with, it is important to remember that they are legally binding agreements. As such, they must adhere to certain requirements in order to be considered valid. First and foremost, the parties involved in an easement must both provide written consent. The consent of both parties is required to make an easement legally binding, and any modification to it must also be agreed upon by both parties. Additionally, a valid easement must be for a reasonable purpose. If it is deemed to be excessive or unreasonable, then it may be invalidated. It should also be noted that an easement can only be created for a specific purpose, and cannot be used for any other purpose than what was originally agreed upon. Finally, an easement must be created in a way that does not unduly burden either party involved. If a court feels that an agreement is unfair to one side, it may refuse to enforce the easement.
Easements can have both beneficial and detrimental effects on your property rights, depending on the situation. On one hand, they can grant you additional access and use rights, such as to a neighboring property. On the other hand, they can restrict your freedom to use your property as you see fit, as it prevents you from doing certain things without permission. It is important to remember that, when an easement is granted, the easement holder is given certain rights to your property. These rights may range from the right to cross over, to the right to build permanent structures like a fence or a shed, to the right to use your driveway. It is important to take this into consideration when purchasing property with an existing easement, as these rights may limit your ability to make changes to the property in the future. Additionally, an easement can also affect the value of your property. This is because an easement can limit the use of the land, which could make it less desirable to potential buyers. If a property is subject to an easement, it may be more difficult to obtain financing for the property due to the potential risk of a legal battle between the easement holder and the property owner.
In conclusion, easements can provide you with valuable rights to access and use the land of another, or they can restrict your use of the land. It is important to consider the implications of an easement before purchasing a property with one, as they can affect the value, usability, and financing of the property. It is critical to work with a qualified attorney to draft and review any easements in order to ensure that they are legally binding and enforceable.
Call or e-mail our office today to speak with our attorney who has over 50 years of experience with easements - 330.686.2282 or kaley@buckeyereserve.com