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Real Estate Easements and Property Rights

Several types of property easements can affect residential homes. When conducting real estate transactions, it’s important to understand the basics of easements and how they may affect your property.

What is an Easement?

An easement is a legal right for people or organizations to use someone else’s property for a specific purpose. A purpose might include access to a utility or service like a water line or electrical wires or the right to use a walking path or driveway.

Several easements may affect your property, including:

  • Utility
  • Access
  • Conservation
  • Solar
  • Drainage

Each easement has specific rights and restrictions, so it’s important to understand the easement terms affecting your property.

Rights and restrictions may be imposed on building or altering property structures, limit use, define maintenance obligations, and more. Easements may be documented legally in writing or granted informally via prescriptive or implied easement.

Types of Easements

Some easements are very common, but homeowners may not be aware of them. For example, homeowners are subject to utility easements to permit repairs and meter readings.

Knowing if there is an easement on your home or other owned property is important to protect your rights. When you purchase a new home, be certain to review existing easements and decide how they might impact your daily life.

Easement Appurtenant

This property easement has no time limit and affects the existing and future owners. The easement ties directly to the property, known as running with the land. For example, if you sell your property that provides access to a private beach shared by two neighbors, new owners must continue to permit the same access to the beach via their property. New ownership doesn’t void or affect the easement tied to the property.

Easement in Gross

This easement is tied to a person or entity, not the property. An easement in gross is generally irrevocable, meaning it can’t be voided unless the easement holder dies or the home is sold. However, if this easement is from a public utility company and you deny them access, they may bring you to court.

Easement in gross can transfer to new homeowners of the property. However, the easement holder can’t transfer their rights for use to another business or person. A new easement is required if a new owner or public utility company wishes to access the property.

For example, utility companies typically hold easements in gross to build and maintain powerlines. An easement in gross may also permit a friend or neighbor property access to hunt or fish.

Easements by Prescription

A prescriptive easement allows an individual continuous use of another’s land for a long time as though they had an easement. It’s not the same as adverse possession, which grants an encroacher legal title rights. The following criteria are required to obtain an easement by prescription:

  • Continuous use for a specific time – The time requirement varies by state law. Some states require as little as five years or as much as 15 years.
  • Open and notorious use – Use of the property must not be secretive. It must be observable and obvious.
  • Hostile use – The property is used without the owner’s consent. The term hostile doesn’t always mean malicious, as a person could be doing the action unknowingly.
  • Exclusive use – This is not a requirement in all states, and the definition of exclusive may differ legally if the property owner currently uses the easement area. It may require different uses for the owner versus the general public.

An example of easement by prescription may include a neighbor unknowingly building a fence two feet over their boundary line and on your property. Fifteen years later, the error is discovered. However, the fence builder may be granted a prescriptive easement.

Creating an Easement

There are several ways to create an easement, and the method depends on your property type, the reason for the easement, and if both parties can agree amicably.

  • Express easement – A written agreement in a deed or will signed by both parties.
  • Implied easement – An informal agreement for an obvious need (i.e., you sell a portion of your land but still need access to the sold property to reach a main roadway).
  • Easement by necessity – An obvious need for an easement, but the parties can’t reach an agreement. Your real estate attorney can help you seek legal property access in court.

Finding an Easement on a Property

Before purchasing a home, disclosure documents include anything that can negatively affect the enjoyment or value of your home. A seller is legally required to disclose any property easements. You may consult offices or seek professional services to identify property easements, including the following:

  • Local assessor’s office
  • County clerk’s office
  • Property search
  • Utility companies
  • Title search

Note that property easements tend to last until they are challenged. However, some easements can be denied when a property transfers ownership. Some easements may hinder or benefit the homeowner. Some are neutral. An easement is legally binding, and not adhering to it may leave you vulnerable to a lawsuit.

Your Property Rights

Easements don’t affect your ownership but can affect some of your property rights. While restricting specific parties’ access to your property, they don’t grant ownership rights. At the same time, easements can affect property value, so it’s important to be aware before making a purchase offer.

A real estate attorney can review the title to your property to determine if there are existing easements or rights of way that may affect your property use.

If you need to modify an existing easement or create a new one, a real estate attorney can help you communicate with the easement holder and negotiate favorable terms. They may also draft agreements outlining terms to protect your interests.

In some cases, disputes may need to be resolved through litigation. A real estate attorney can represent you in court, ensuring a satisfying outcome. Contact our Chicago area office at 630-568-6656 to discuss how we can help you with any legal questions you may have. We look forward to the opportunity to work with you.

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