If you’re trying to buy a property, you might have come across the concept of right of way easements. Easements are a common component of real estate law. The right of way easement is one of the most common types of easements, but there are many more.
We’ll tell you everything you need to know about right of way easements, including how to figure out if a property has one and how to remove it. We’ll also review other kinds of easements you might come across.
What Is a Right of Way Easement?
A right of way easement allows an individual, a group of people or the general public to travel through another person’s land for a limited purpose. For example, easements might be created to allow owners access to their property (which would be the case for landlocked properties), allow utility companies to access sewer lines and water systems or allow the general public to use a sidewalk that passes through a property owner’s land.
A right of way easement example
Alex has just moved into a beautiful new property in the countryside. Pro: It overlooks a lake and a mountain range. Con: To get to it, Alex has to cross Sam’s neighboring driveway. Luckily, the home’s previous owner established a legal designation granting easement access through Sam’s property.
Alex was made aware of the easement by the real estate agent. The agent told Alex that there will always be a right of way through Sam’s driveway.
Alex’s situation is a classic example of a right of way easement. (In this case, it could also be called a road easement or driveway easement.)
How Can You Find Out if a Property Has an Easement?
There are several methods to find out if a property has an easement attached to it. One method is to hire a title company to do a title search. You can also verify a property’s rightful owner and check for any encumbrances and defects with a title search.
All public filings and court records relating to any easements should be outlined in a title search. And, in most cases, the Seller’s Disclosure will include any easements. This is especially important when it comes to implied easements.
Express easements are usually recorded on U.S. Land Records or a property’s warranty deed. There are times when an easement can’t be found in the official records. You may need to retain an attorney who can find unrecorded easements.
You can also check if a property has any easements by:
- Contacting local utility companies to ask about easements
- Checking with the county’s land records or clerk’s office
- Locating a property survey
How Can an Easement Affect a Property?
Easements can affect a property in several ways. When there is an easement on a property, the owner may be prohibited from building structures within a defined area. For example, an owner will likely not be allowed to erect a fence or plant trees that obstruct access or block the use of an easement.
Learn how easements can impact property in more detail:
Easements can affect property value and impact your ability to build or renovate on your land.
Strict, restrictive easements tend to make a property less desirable, which may cause the property’s value to drop. However, an easement that makes it easier for a buyer to access nearby public land or their home is usually desirable.
However, it’s unlikely that easements will have much of an impact on a property’s value. If you’re buying a property with an easement on it, the property’s value would have already been determined by a real estate appraiser. The land’s value should already reflect the existence of any easements.
Complications with home additions
One of the biggest implications of a property easement is that it can impact building, renovating and even landscaping on the property. Owners may be prohibited from making certain home upgrades because those upgrades would hamper access to the dominant estate.
Here are some examples of how home improvements can clash with easements:
- Hot tubs and pools: Building a hot tub or pool could interfere with underground utility easements.
- Trees, shrubs and grass: You may be able to add shrubbery, grass and shallowly planted vegetables to an easement, but trees and deep-rooted vegetation could obstruct access.
- Fences: Fences may be removed if they interfere with an easement.
- Additions: A second-floor addition could obstruct a neighbor’s view, which may be protected in an easement.
The dominant estate can remove any additions that obstruct access to the easement. The best way to approach home additions is to contact the dominant estate and ask for permission to build.
A buyer purchasing a property with easements may want to negotiate seller concessions. If the easement poses an inconvenience, it’s a legitimate reason to ask a seller to lighten the load of closing costs, for example.
How Do You Remove an Easement?
Removing an easement can get complicated. You may need to work with a real estate attorney to make sure the proper steps are taken.
But, if you’re friendly with the other party or are confident in your negotiation skills, you might directly request the removal of an easement. Just remember, the dominant estate is under no obligation to agree to your request.
If you need to challenge an easement in court, there are six primary removal strategies:
- Abandonment: To prove the dominant estate has abandoned the easement, you must prove failure to act.
- Merger: If the dominant and servient estates merge, termination by merger may be granted.
- End of necessity: The easement is no longer required.
- Demolition: The easement property is destroyed.
- Recording act: In some cases, an incorrectly recorded easement may be terminated.
- Adverse possession: If the servient estate successfully blocks the easement for a prolonged period, adverse possession might void the easement. The period for adverse possession varies by state, but it’s usually 10 or 20 years.
What Other Types of Easements Should You Know About?
While easements can help you gain access to a public area or ensure that your utilities are serviced, they can affect you in other ways. You should know your rights in case a right of way passes through your land.
Here’s a list of some common easements:
An appurtenant easement (aka an easement appurtenant) is an easement that is permanently attached to a property, even if the owner(s) change. For example, beachfront properties often have easements that grant the public access to the beach through a path on the property. No matter who owns the property, they must grant the public access to the beach.
Easement in gross
An easement in gross is the opposite of an appurtenant easement. The easement is tied to an individual or organization – not the property. Most utility easements are easements in gross. The companies are allowed access to the land for installation, service and maintenance.
A private easement is an agreement between a private property owner and certain people, including another property owner, to use the property for a specific purpose.
For example, Parker wants to fish from a pond on neighboring land owned by Lee. Unfortunately, Lee isn’t a fan of noisy boats and is concerned that Parker’s boat will spoil the serenity of the view.
Parker and Lee will likely have to work with an attorney to set up a private easement that grants Parker the right to fish from the pond. To satisfy Lee, Parker may have to agree to use a motorless boat and only fish at certain times of the day.
Express easements are written into a document, like a deed or will, and relate to a property owner and a second party that needs to use a portion of the land. Any easement that’s expressly outlined in writing falls under this category.
Implied easements exist based on custom or circumstances – not written agreements. In these cases, there is no need for a written agreement because the easement is obvious. The implication is that the need for the easement is greater than the need for a property owner to grant access.
For example, stormwater drain maintenance companies may need to access certain land for repairs, maintenance and emergencies. The land use rights for the companies are implied.
Prescriptive easements can be appurtenant or in gross, but they are never express. They occur based on open, ongoing use, not a written or spoken agreement. That is, the land is being used openly, but without the owner’s permission.
Let’s take a look at Dylan and Marley’s situation. Dylan’s and Marley’s driveways are connected. And at some point, Dylan started using half of Marley’s driveway to park their second car. If Marley doesn’t object to the parking situation within the time set by state law, a court might view the absence of an objection as consent.
In this instance, a court would have to grant Dylan a prescriptive easement to keep parking on Marley’s property.
Ease(ment) On By
Easements aren’t necessarily a bad thing. In fact, if you’re a buyer and you’re looking at a property with an easement on it, the inconvenience of the easement could offer some leverage to negotiate seller concessions. But, of course, that all depends on the market you’re buying in.
And remember, you can always try to get an easement removed. Removal may be as simple as making a direct request or as involved as a legal proceeding, but it’s a possibility.
The most important thing is to know whether a home has easements and what they are. That way, you’ll know what you’re easing into if you decide to buy the home.