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May 31, 2019

Q&A: What is an Easement?

Real estate has many intricate details and nuances and when it comes to understanding easements, the same applies. Whether you, your neighbor, the developer down the road, or a utility company needs an easement, it helps to know what they are.

According to the American Bar Association (ABA), an easement is an interest in land which is owned by a person who is not the owner of the whole parcel.

An easement can provide someone the authorization to use or control an area of, on, or below someone else's land.  These can be for any number of reasons, such as remedying an encroachment, to provide access to an area of land behind a property or to maintain or install utility poles and wires.

Easements may only run for a particular time or may last forever.  It depends on the type of easement and the wording of the easement grant.  Most easements are for utility access and last forever.  An easement does not give the beneficiary of the easement (such as the neighbor who needs the driveway or the utility company) the right to exclusive possession, improve or sell the land from out from the land's owner.  The person who owns the land incumbered by the easement still has free use of the land, so long as it doesn't impair the easement holder's rights.

So, what happens when someone else has a properly recorded easement over property you’re interested in buying?

Unless otherwise specified, easements continue to exist after the land that the easement is on sells.  For example, if you had a parcel of land that could not be accessed from the street directly ("Landlocked") but needed an easement across the land of the property in front of you, that easement would still be in effect after that land in front of yours was sold to a new owner and they would be required to continue to allow you to use that easement.

Recorded easements (those are easements that are properly filed with the County) will show up on a preliminary title search, which is conducted as part of the buyer's due diligence during a home purchase.  If an unrecorded easement is discovered during your due diligence period the ABA says the title company will most likely list this easement on your title policy as an exception to coverage.  After escrow closes, if someone were to claim the right to use this easement, your title insurance company would not help you resolve this issue.

In my experience and my company's 30+ years of experience selling homes, very rarely has there ever been an easement other than one for utility companies.  I can't recall seeing an unrecorded easement.  If one were to arise during your inspection/due diligence period, a qualified real estate attorney can help you understand the type of easement and it's impact on your potential enjoyment of the property.  If you don't have an attorney, we would be happy to recommend some to you.

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