An easement is a right given to a person or entity to utilize a portion of your property for a specific purpose or reason. There are a number of different reasons a person or entity may want or require an easement. For example, an easement may be needed in order to have utility lines cross your property, the right for someone to pass through your property to get to another property, or access to go in and out of the property.
I’ve had clients who have easements on their property in which they can’t disturb the natural condition of a portion of their property. Typically, that might be an easement that was put in place before they obtained the property. For example, certain areas of their property must remain in their natural condition and, therefore you can’t build on them. Sometimes, it can be an ecological type of easement.
Easements are important for a lot of different reasons. When we have a client who is purchasing a piece of property, we will look at the easements that attach to that property so the purchaser knows what they can and cannot do on that property. This is an important reason to have a title search run on a piece of property before purchasing as it shows us which easements run with the purchase of the land.
Utility companies may want to be able to run lines through your property so that they can get gas or electricity to other people within your subdivision. At the same time, you may want to have utility lines across your neighbors’ land because you too want electricity, gas and water. Therefore, you will need a utility easement.
Often, there are restrictions on the use of a property that go with those easements. For example, a utility company might have an easement through your backyard and you may be restricted from building on that easement. For example, you may not be able to put a fence on a portion of your property due to the placement of an easement.
When working on behalf of a client who is purchasing a property, one of the things we look for is the location of the easement. You wouldn’t want an easement running through the center of your building. That can be a huge problem. Particularly if it relates to utilities that require the utility company to get access to them.
Sometimes we run into an issue when there isn’t an easement and there should be one. For example, a buyer may purchase a piece of property where the driveway encroaches on the neighboring property in order to access the road. If there is not a recorded easement for that driveway, then it becomes a title defect.
If the buyer wants to utilize that driveway in order to access the road, they will need an easement of some sort. It could be what we call a prescriptive easement. The prescriptive easement is an easement of necessity, one that the landowner needs to have. So when a property is landlocked, as in the example provided herein, the landowner would require an easement out of necessity to get access to the road. That landowner and their predecessors may have been using that driveway for such a long period of time that the law says that an easement exists even though there’s not a written one.
However, you never want to rely on a prescriptive easement. You don’t want to buy a piece of property without having some knowledge and understanding what easements do and do not exist. If one does not exist, and you need one, you will want to make sure that one is created before you purchase the property.