Property easements make real estate ownership more complex. If your property has an easement, you own the land, but others have legal rights to access and use it.
Easements are more common in real estate than you might think. Before purchasing a property, it’s important to understand whether any easements exist and how they could affect your ownership rights. We break down the various types of easements, how they work, and what they mean for you as a homeowner.
What is an easement?
An easement is a non-possessory interest in part of your property that gives a person or entity a legal right to use it for a specific purpose. Easements are legally enforceable property rights, often documented in deeds or other records.
For example, a neighbor may have an easement to cross your property to access a public road. Utility companies typically have easements allowing them to enter your property to maintain existing power lines or run new ones.
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Important
Easement laws and property rights vary by state. If you have questions about a specific easement on your property, consider consulting a local real estate attorney or title professional.
Main types of easements in real estate
Easements appurtenant and easements in gross are two of the most common types of easements. The former is tied to another (usually neighboring) property, and the latter is tied to a specific person, group, or entity, such as a municipal government or utility company.
Easement appurtenant
An easement appurtenant is an agreement involving two properties:
- The owner of one property (the servient estate) grants the owner of another property (the dominant estate) the legal right to use the servient property for a specific purpose.
- An easement appurtenant is attached to the land itself, so if one owner moves, the easement remains in place for the new owner.
If your property has a path to a private beach and your neighbor has an easement appurtenant to gain beach access, the easement still exists even if you sell your home to someone else.
Easement in gross
An easement in gross is an agreement between the property owner and a specific person or entity:
- The owner of the property (the servient estate) grants a person, company, or organization the legal right to use part of the property for a specific purpose.
Unlike an easement appurtenant, an easement in gross is tied to a particular individual or entity, not to ownership of neighboring land. If you own the property and sell it, the easement remains in place. However, depending on state law and the easement terms, the person or entity with access rights may not be able to transfer those rights to anyone else or may be limited in who they can transfer to.
A utility easement is a common example of an easement in gross. Utility companies often have easements allowing them to enter a property to install and maintain power lines. Or you may grant an easement in gross to a specific friend or family member so they can enjoy your private beach.
How do easements affect homeowners?
Easements often impact your daily life as a homeowner, your ownership rights, and your property value.
Daily life impact
An easement that allows other people to regularly access your property can be disruptive and encroach on your sense of privacy.
For instance, a public easement could mean that pedestrians regularly use a path that cuts through your yard. Depending on the easement terms and local laws, you may at least share responsibility for maintaining that path, even if you’re not the one contributing to its wear and tear.
Private easements can also impact daily life. A neighbor who has access to your land in a rural setting may operate noisy equipment every day. If you and a neighbor share a driveway, it can also create conflict regarding who takes care of it.
Ownership rights impact
An easement on your property may affect how you can use your own property.
“Easements can become a major concern when they impact buildability,” says Sander Scott, a real estate broker in northern Michigan.
For instance, an access easement or utility easement may limit what you can build and where you can build it on your own land.
“I can recall several deals falling apart when the buyers discovered that a utility easement on an otherwise quiet lot made it so that the home couldn’t have a pool or any additions permanently,” says Ben Mizes, real estate agent and president at Clever Real Estate.
Property value
Scott warns that an easement “can influence resale value in a future buyer’s eyes.”
An easement could lead to a smaller pool of potential buyers, which can affect how quickly your home sells and how much you can sell it for.
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How are easements created?
Easements can be created in several ways. While most easements are express written easements, some are implied, but still protected by law.
Easements by prescription
An easement by prescription is created over time when someone uses a portion of your land openly, continuously, and without your permission.
If the person has used the land for a certain number of years, they may be able to establish a prescriptive easement giving them the right to continue using it. Rules on prescriptive easements, including how long it takes to establish them, vary by state.
To help prevent trespassers from establishing a prescriptive easement, make sure to understand your property boundaries and take action to prevent or respond to unlawful entry.
Prescriptive easement examples
Here are a few examples of situations where a prescriptive easement could be created:
- Hikers regularly cut through your land to connect two nearby trails.
- People regularly fish or hunt on your property, and you've never told them to stop or put up a fence or no trespassing signs.
Express easement
Express easements occur when a landowner grants express, written permission for another party to use the land in a specific manner. Both parties involved agree to the arrangement. These agreements are often written into deeds or wills.
Express easement examples
Examples of express easements include:
- A written agreement allowing your neighbor access to a shared driveway to reach the public road.
- A written agreement allowing a utility company to maintain power lines on your property.
- A written agreement allowing a friend to hunt on your property.
Implied easement
Courts sometimes recognize an implied easement, which means they acknowledge that circumstances mean an easement must exist, even without a written agreement.
There are two types of implied easements:
- Easement by necessity: This is a legal right created when there's no other reasonable access to public roads or essential utilities. An easement by necessity is common when you subdivide your land and leave the purchaser without access to the public road unless they cross your property.
- Prior use easement: If the landowner used a parcel of land in a specific way before parceling it off, future owners may have the right to continue that use if it was apparent and ongoing before the property was divided.
How can you find an easement?
A title search is likely the most reliable way to identify an easement, even though unrecorded easements may not appear in public records.
“Start with the title company,” advises Scott. “Easements can be found in the title commitment, on a survey, or other recorded documents, and will be picked up in a search done by the title company. [It’s] best to conduct a title search as soon as possible in the process.”
You can also check records with the local government and even utility companies. But you may be able to spot an easement before you even make an offer on a home.
“As the buyers and their agents tour the property, they should look for visible signals, like shared driveways, utility pathways, or other signs of access routes,” says Scott. In Scott’s line of work in northern Michigan, he and his buyers keep an eye out for walking easements along lakefront properties.
Editor insight: “Research title companies before hiring one — you're not obligated to use the title company your Realtor recommends. A good title company will perform a thorough search to uncover any easements or liens on the property. I found out my property had an easement a year after I bought — when I was startled by a stranger wandering through it. Turns out there was an easement appurtenant that the title company missed.”
— Meredith Mangan, Senior Loans Editor, Credible
Can an easement be removed?
An easement can technically be removed, but the process could be difficult.
“Removing an easement usually requires agreement from all parties who benefit from it and formal legal documentation,” says Scott.
In general, your options include:
- Petitioning a court to terminate an easement
- Waiting until the easement’s expiration date, if one was specified
- Working with the other party to come to a mutual agreement
- Purchasing the easement rights from the benefited party
Hiring a real estate attorney could help you navigate the complex legal process, but even with legal help, removing the easement may not be possible.
“It is very rare,” Mizes says, “so easements should be regarded as a permanent element of the land.”
If you successfully remove the easement, register the termination at the local recorder’s office to make it official.
Good to know
An easement by necessity can be terminated if you can prove the necessity no longer exists. For instance, if a new public road makes it possible for your neighbor to enter and leave their property without accessing yours, you may be able to seek termination of an existing access easement.
FAQ
Does an easement lower property value?
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Can you build on land with an easement?
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Is an easement the same as a right of way?
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Do easements transfer with the property?
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