If you’ve got an easement, your potential new neighbor might have a legal right to a portion of your land.
Picture this: You’ve fallen in love with a gorgeous home on a corner lot in Fort Lauderdale, FL, but on the day of your home inspection, you’re shocked when your new neighbor drives right through your property on their way to work. A chat with the home inspector and an investigation of property records reveals something concerning: There’s an easement on your potential new property. Your neighbor needs to drive on your land to access theirs — and is fully within their rights to do so.
What’s a homebuyer to do? Start by learning the good, the bad, and the ugly about property rights and easements.
What are property easements?
An easement gives a person or entity a legal right to use someone else’s land. But that doesn’t mean your neighbor can just start growing tomatoes in your yard. An easement is “not a right to possess the property, but rather to use it for a stated purpose,” says Bob Tankel, a Pinellas, FL, attorney who specializes in community association law. For example, a utility company might have the right to dig up a section of your lawn to install or maintain phone, power, and cable (maybe even fiber-optic) lines.
What should you know about easements before you buy?
Start with the basics: It’s important to know whether there are any easements on a property before you close, where they are, and what type of easements they are. Some easements, for example, remain after you buy the house, but others can be canceled. This depends on whether the easement is an appurtenant easement or an easement in gross.
“Appurtenant” means belonging to someone else. So an appurtenant easement is one in which the neighbor sought and now owns the easement, such as in the case of that driveway access. An appurtenant easement stays with the house if you buy it.
With an easement in gross, you have more say. If, for example, the property has a path that leads to a fishing pond, the original owner might have granted a neighbor access to the property to get to the fishing spot. That’s considered an easement in gross, and it does not remain once the property changes hands. So if you wish to put up a fence (or just don’t want your neighbor traipsing across your property), you have the right to end the agreement — just be prepared for an awkward first introduction with that new neighbor.
What are your property rights and easement rights?
If you buy a house with an easement, you’ll need to play ball. Let’s say you bought beachfront property (lucky you!) on a public beach. But what if your new property is the only access point the neighbors have to said public beach? You, in this case, would not have the right to block your neighbors from their fun in the sun by putting up a fence. If you did, you would be trespassing upon a right-of-way easement, also called an “easement by necessity,” and you could be sued.
What are the limitations on renovations or expansions?
If you plan to build a new 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. “Written easements are contained in deeds, individual documents, on plats, and in condominium and homeowner association documents,” says Tankel. Let’s say your neighbor received an easement for their solar panels. You then cannot renovate, expand, or even plant a tree that would block your neighbor’s sunlight access.
Can easements be challenged?
“Easements can be challenged by [property] owners under specific circumstances,” says Tankel. You would need to go to court to make that happen. If the easement holder agrees to terminate, it should be easy. In some cases, easements have an expiration date, which also would make ending the easement fairly easy. But other cases are more difficult.
For instance, you might have heard of “squatter’s rights.” There’s a legal term for this: “prescriptive easement.” This happens when a person has been openly using their neighbor’s property for a certain length of time (which typically varies by state) without the owner’s permission. This type of easement isn’t on a title report, so buyers would most likely need to do a physical inspection to uncover an easement of this type, according to Tankel. If you see your neighbors sunning themselves on a dock they constructed on your future lakefront property or they’ve put up a fence on your potential land, those would be big clues. “Prescriptive easements can be challenged by allegations that [the land] has been abandoned,” says Tankel. In this case, it might be a good idea to consult with a real estate attorney for advice.
The bottom line on easements
It’s within your control to buy a house with an easement, so do your homework! “Buyers need to exercise due diligence to make sure they know the extent of any possible easements,” says Tankel.