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Easements: know your property rights

An easement can be a big benefit or a bit of a bummer for your property.

Found out the home you’re planning to buy has an easement on the property? That could be a good thing, a bad thing, or an entirely neutral thing. Here’s what easements are, and how they affect your property rights.

What are property easements?

An easement gives a person or organization a legal right to use someone else’s land—but only for a needed purpose. A utility company may have an easement on your property to access an electrical pole. Or if your driveway overlaps your property line, you might rely on an easement on your neighbor’s property to get to your garage.

What you need to know about easements when buying a home:

  1. 1. Does this property have easements?

    Legally, sellers must disclose easements on their property during the sale, so you should know if an easement exists by the time you have a purchase agreement, if not sooner. But if you’re buying a bank-owned home being sold as-is, you should do some extra research yourself. Your real estate agent can help you decide if there’s reason to suspect a property might have an easement on it, but contact the city to find out for sure. Find out exactly where and what type of easements they are. Some easements, for example, remain after you buy the house, but others don’t.

  2. 2. What types of easements are there?

    The property rights an easement allows depends on the rules of your specific easement. There are many types, but these are some of the features that help define them:

    • Appurtenant versus gross easements: An appurtenant easement allows a property owner access to land that’s only accessible through a neighbor’s land. These technically benefit a property. An easement in gross benefits an individual or entity, whether that’s a neighbor, a utility company, or other organization.
    • Public versus private: Both appurtenant and gross easements can grant access to public or private entities or properties. A private easement might allow a neighbor to access your property, and a public one might allow any member of the public to walk through your yard.
    • Affirmative versus negative: Most easements allow something to happen, which are affirmative. But they can prevent actions, too, like blocking someone’s solar panels with a line of trees, which would be a negative easement. (That’s right: easements can cover rights to air space, area underground, and the surface of land.)

    Prescriptive easement: Prescriptive describes the way in which an easement comes into being. This is when someone is using a property owner’s land regularly for a certain period of time (set by state law) without being restricted by the owner. This is commonly known as “squatter’s rights.”

  3. 3. What are your property rights and easement rights?

    If you buy a house with an easement, odds are, you’ll need to abide by the rules of the easement—because they’re not often put in place lightly. Let’s say you bought beachfront property, and the only way the neighbors can access the public beach is through a path in your yard. You’d legally need to let them use it, because they have a right to access the public beach. Similarly, if a utility company has an easement to access a pipe under your yard, there’s not much you can do to change that.

    Otherwise, you have the right to use your property in any way you’d like — so long as that doesn’t include anything that prevents the easement from being accessed in its intended way.

  4. 4. What if you’re buying a property that relies on an easement on someone else’s property?

    If you fall in love with a home that’s perfect and in the right neighborhood, but it has an extremely narrow driveway, you might be pleased to find out that you have an easement that allows you use a few feet of your neighbor’s property to get in and out of your car. Just make sure the terms of the easement guarantee it will stay with the property after you buy it, and be open and friendly with your neighbor about the rules of the easement. They have to let you use it, but if they’d prefer you to treat their property in a certain way, respecting their wishes will help keep things neighborly.

  5. 5. How can easements affect my renovations or additions?

    If you plan to build a new construction home or an addition, it’s especially important to know whether there are any easements on a property before you buy. You can find out by looking over your paperwork. You’ll find easements on deeds, plats, and other homeowner documents. If your neighbor received an easement to ensure a view of a lake, for example, you couldn’t renovate, expand, or even plant a tree that would block your neighbor’s view.

  6. 6. Can easements be challenged?

    They can. But you would need to go to court to challenge an easement, so it’s not easy to do in the middle of home buying. If the easement holder agrees to terminate, it could be a smoother process. And in some cases, easements have an expiration date (this would be stated in your deed), so that could be good news.

    Other cases are challengeable, but harder. For instance, if there’s a prescriptive easement that’s not in continuous use (like a shed was built over your property line, but it’s no longer used), you could challenge it. However, there’s no guarantee you would win.

Easements aren’t the only legal constraints that could be on a potential property. Next, learn about how homeowner’s association rules might affect the home you want to buy.