An Easy Guide to Understanding Easements: What They Are and How to Keep Yourself Informed during a Real Estate Transaction
Buying property is fairly straightforward for most private individuals, but one area of property law that can cause real headaches for would-be landowners is the law of easements. If you are a soon-to-be landowner, then it will benefit you to understand the basics of property law concerning easements. Below is an introduction to easements and how you can protect yourself when purchasing property:
What is an easement?
Simply put, an easement is a right to use the property of another person or entity. Easements are based in English common law, and they are a means of making practical accommodations for others and the public. There are multiple types of easements, but these are the most common encountered by the average property owner:
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Utility easements—This category includes electrical lines, water mains, television and internet cables, natural gas pipelines, and sewers. It's important to note that these types of easements can be buried beneath the ground or elevated above your property.
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Right-of-way easements—Included in this category are streets, highways, railroads, and other throughways.
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Sidewalk easements—Fairly self-explanatory, sidewalk easements are often granted even if a physical sidewalk doesn't exist on a given piece of property.
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Driveway easements—This type of easement grants the right for one party to construct or use an existing driveway on another person's property to access their own property. This prevents someone from being "landlocked" and unable to access their own property.
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Floating easements—These easements refer to rights of access rather than a defined physical route through another's property. For example, a floating easement may include the right for someone to walk through the interior of a building in order to access their property.
How to know if an easement exists
For the most part, the existence of a given easement is usually obvious. If you see a sidewalk on a given piece of property, then you can assume an easement exists. Likewise, improved property that contains a house or another occupied structure likely has utility lines leading into the building via underground access.
Where the existence of an easement can become vague is in the case of a possible floating easement or perhaps even a driveway easement. These types of easements can exist within the deed, so researching property records can bring these to light. However, some easements exist only as a result of estoppel, which is an action of a court of jurisdiction based on an oral promise of one party. This is where additional research may be necessary on the part of a prospective property buyer.
What can be done to protect your interests in a possible transaction
To avoid potential legal entanglements concerning easements, you should take the following steps to ensure you have an understanding of what easements exist on the property of interest and what easements you should be granted:
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Hire a professional surveyor—While land surveys are required in some property transactions, other transactions may make a survey optional. However, you should always contract with a surveyor to have any property of interest surveyed. Surveyors possess the professional knowledge and ability to alert you to possible easements and prevent surprises. Contact a company like Krause & Gantzer to get started.
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Obtain legal representation—If there are any doubts about your legal rights in a property transaction, then you should consult with a property law attorney who can give you a full background on the laws and draft legal documents which help secure your rights. While attorney fees may be costly, you can't afford to risk devastating losses to your property value should an easement issue arise after the transaction is closed.
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Interview prior property owners and neighbors—Real property transactions are a matter of public record, and you will be able to identify previous owners by searching the records. It is a good idea to contact these individuals for the purpose of asking about prior use of the property and their knowledge of possible easements. In addition, contacting neighboring landowners can help you identify possible easements or at least resolve misunderstandings that may relate to property access.