Is it possible to own property, and yet not have a part of it solely for your own use? Is it just as possible to own property and have use of part of another owner’s property? Yes, both are possible with an agreement called an easement. An easement is a legally defined “property right that allows another individual, business, or government entity access to a certain part of your property.”
If you own land, it’s possible that you will grant access rights to another owner or entity to use for a specific and limited purpose, such as use for a shared driveway or clearance for a road, water rights, or to allow utilities or the government to provide services.
There are two ways that easements can be identified and granted—expressed or implied. An expressed easement is laid out in a formal written and recorded agreement, while an implied easement is a verbal agreement.
There are also affirmative and negative easements. An affirmative easement grants someone other than the property owner the right to access a portion of the land for a specific purpose. A negative easement is typically used to preserve natural or historic sites, and it can prohibit activities—such as building, planting trees, or obstructing views—that could interfere with another property owner’s enjoyment of features like ocean vistas, mountains, or city lights. These restrictions help protect property values and prevent disputes.
Private easements differ from public access rights. For example, easements by necessity, also called access easements, allow a neighbor to cross a property if it’s the only way to reach their own land—like a dirt road connecting to a main street. Property owners can also grant informal easements (or easements in gross) for personal uses, such as allowing a neighbor’s children to swim in a pond or boat on a private lake. These agreements are typically non-transferable unless explicitly stated. In general, private easements are controlled by the property owner and may be transferred or sold along with the property.
A variation of private easements is a prescriptive easement. For instance, if your oceanfront property has a side path to the beach and neighbors use it continuously for a statutory period (commonly 10 years, depending on state law), they may claim the path as a prescriptive easement, even if the property changes hands. Once established, the easement may remain legally accessible to the public.
A public easement is set by local authorities and gives the public rights to use a given easement for the greater good and cannot be sold or blocked. A good example of this is a concrete sidewalk that allows safe walking, tricycling, rollerblading, etc. away from the street, but it does not give the public the right to enter your lawn or home.
A utility easement can be used to give pipelines, telephone lines, water lines, or underground utilities access to the land for the greater community good. The companies can use the land to lay the cables or pipes and to access their machinery, etc. for repairs and maintenance. Once these have been installed, the property owner cannot block access to existing utilities.
A permanent easement is called an easement appurtenant, which is tied to the property, not to the owners. What this means is that the easement is transferred as part of the property in the deed upon sale to new owners. A property owner’s home may back up to a public space, such as a park or a beach, or a private road that otherwise would prevent a neighbor from accessing their property.
While “private beaches” exist, most coastal states regulate public access up to the intertidal zone—the area between high and low tide lines. Even if the land is privately owned, the public generally retains certain rights. Enforcement is challenging, though cases of trespassing may succeed if visitors are disruptive, leave trash, or infringe on privacy.
As a homebuyer, you’ll need to ascertain if there are easements on the property you want and whether you’re using the easement or granting use of the easement. The dominant estate is granted use of the easement while the servient property is owned by the grantor of the easement. To make it easier to remember, the owner of the servient property is serving a neighbor or a company.
To determine if a property has an easement, obtain its legal description and address. Check land records at the county clerk’s office, consider a professional land survey, or order a title search. Speak with utility companies about potential easements, and consult zoning or planning commissions for existing or planned easements. If under contract, the warranty deed should disclose known easements. Finally, a real estate attorney can confirm that no legal or implied easements pose issues.
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