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Much of your success as a real estate investor hinges on your understanding of important details that can affect a property you’re interested in buying or selling, details that can be easily overlooked.
One of these important details is an easement.
Not only can an easement affect a property’s value; it may limit the ability to build a structure on the property. Plus, it allows someone other than the owner of the property to use it for a prescribed purpose.
In this article, we’ll explore:
- What is an easement
- The types of easements
- How to find out if a property has an easement
- How to remove an easement
- And more
Let’s get started!
What Is An Easement?
An easement is the legal right of someone other than the owner of the property to use it for a prescribed purpose.
If your property has an easement, it may limit your ability to build a structure on the affected portion of your property.
Resale values may be affected by structures installed by utility companies through easements, and buyers may not like the idea of other people being allowed to “trespass” on their land.
One advantage of an easement is that some easement holders pay a fee to the property owner, making the easement more attractive. But keep in mind this is not for all cases.
Next, we’ll explore several different types of easements.
Types & Examples of Easements
There are several different types of easements that give others a legal right to use your property.
Easement in Gross & Utility Easement
An easement in gross that is a utility easement will allow a utility company to use your property.
For example, many easements in gross that go to utility companies allow them to run a power line across the property.
The benefit goes to the utility company, but not necessarily to your parcel of land.
A private easement is an agreement that is negotiated between two property owners.
The agreement is designed to address personal property issues like installing solar panels that might obstruct another person’s view.
A prescriptive easement can arise when another person uses someone's property often and without permission.
If the owner does not object, the owner is in effect providing consent.
With a prescriptive easement there is no official agreement between the two parties.
An example of a prescriptive easement is when a neighbor uses your property to access a side road and you don’t object.
Easement by Necessity
An easement by necessity can be similar to a prescriptive easement, but it is granted out of necessity and not prior use.
If your property blocks the only access to a public area or a public road, the court may order you to provide an easement to your neighbor.
How to Find if a Property Has an Easement
The easiest way for homeowners and investors to find out if the property has an easement is to do a thorough title search.
However, it is possible that the easement is in the process of being created, or that it was never recorded properly.
In this case, you can try visiting the Tax Assessor’s office in the town where the property is located for more information.
The County Clerk can direct you to the property’s public records that may show easements. You can find legal records of easements appurtenant (meaning that the easement is attached to the land and is transferred to the new owner when a real estate transaction has been completed) and easements in gross (meaning that they only apply to the person you decide can access your property) in documents like transfer deeds. You may have to pay a fee for the records.
For example, in Palm Beach County, certified copies of records are $1 per page plus $2 per instrument.
To find out about utility easements, you may want to check with the utility company directly.
6 Ways To Remove an Easement
There is more than one way to remove an easement. This includes:
#1: Quiet the Title
Filing a legal “quiet the title” action can be initiated to remove some easements, especially those that were put in place years ago.
#2: The Purpose for the Easement Expires
Say that your easement will allow a utility company to cross your land to do repairs on a neighboring site.
You can create an easement that ends on a particular date or at the completion of the project.
#3: Abandon the Easement
If the purpose for the easement no longer exists, you may be able to abandon the easement.
#4: A Prescriptive Easement Ceases to be Used
Remember, if a person uses your property and you don’t object, it is a prescriptive easement.
However, if the person stops using your property, it is abandoned and the easement may be removed.
#5: Acquire the Property with the Easement
Adjacent properties may have an appurtenant easement that transfers with the land between them.
In that case, one — or both — parties can access the other property.
Merging both properties under one legal description will remove the easement.
#6: Sign a Release Agreement
Sometimes new owners find that they no longer need an easement, and they sign a release document to end the easement.
The Bottom Line: Easement
Many homes have an easement of some sort, whether it’s an easement in gross that only applies to the person of your choice or an easement appurtenant where the easement transfers with the property.
Keep If you find that the property in question has an easement, an attorney can guide you in getting it removed.