What’s in an Easement?
September 10th, 2021
You may have heard the term easement, but there are a lot of details about easements that you might not be aware of. If you own a home or any land, it is important to know exactly what an easement is and what that means for your property. An easement is a legal document pertaining to a specific piece of land where the title and ownership of the property remains with the landowner, but another person or group of people is given permission to use that land for a specific purpose. There are several different types of easements and ways that they can be created.
Types of Easements:
- Easement Appurtenant
An easement appurtenant is an easement that is tied to a property, not a person or landowner. This type of easement remains in place regardless of when it was created or when a change of ownership occurs.
- Easement in Gross
This type of easement is tied to a person, not a property. It is common for utility companies to hold easements in gross if there are powerlines on or near a person’s property. An easement in gross is generally irrevocable and can only be voided when the easement holder passes away or there is a change of ownership with the home. In this case, the new owner may choose to transfer the easement to their name or deny the easement.
- Easement by Prescription
An easement by prescription is when a person or group uses another person’s land for an extended period of time without the owner’s permission. They can then obtain an easement by prescription. The number of years required before obtaining this easement varies by state, but in Florida, it is 20 years. An example of this would be if your fence was unknowingly built 3 feet over the boundary line into your neighbor’s property and was only discovered 20 years later. You may then be able to obtain an easement by prescription.
- Historic Preservation and Conservation Easements
A historic preservation easement prevents landowners from modifying a property if it is a historic property. A conservation easement prevents landowners from developing on specific areas of land. Property owners may choose to establish these times of easements to preserve something valuable; there are also significant tax benefits to establishing this type of easement.
Ways to Create an Easement:
- Express Easement
An express easement is the most common way to create an easement. This type of easement is recorded in a legal document that is signed by both parties participating in the easement.
- Implied Easement
An implied easement is not written down or recorded. This type of easement is exactly what its name may suggest: it is implied that a specific property would need to be used by another party. For example, if you can only reach your home by crossing someone else’s property through a driveway, that is an implied easement.
- Easement by Necessity
An easement by necessity is created by law if an implied easement agreement cannot be reached. Once a new way to access the property is created, the easement by necessity can be terminated.
When purchasing a home, it is important to know if the property has an easement or not. Here are some sources that you can check to see: county land records office, city hall, utilities company, property search, and title search. It is also in your best interest to get title insurance; this can help protect you against any unknown easements after a purchase. If the property you are interested in has an easement, it is not necessarily a bad thing. This easement could be beneficial, neutral, or have a termination date. It is important to read all of the details about the easement and consult with a real estate attorney to fully understand all of the implications of an easement.
Easements, of course, can take many shapes, sizes, and are limited only by the imagination. They can be developed and suited for all manner of residential, commercial, and recreational uses. At Waugh Grant, we can tell you about all of them and help you understand or shape them for your needs.