An easement is a legal allowance that permits the holder to use or modify a piece of property that does not actually belong to him. Often, easements are used by utility companies that need to run wires and pipes across private properties and dig holes and erect posts to service them. In some cases, easements are created to permit a property’s neighbors and other private parties to use a section of the property for their own benefit. When an easement is created, it is created for a specific purpose – there is no catch-all type of easement that allows everybody to use a section of property or one that allows its holders to use the property for any unspecified purpose.
Understanding Property Easements
There are three main types of property easements:
- Easements in gross. This type of easement benefits an individual or group, rather than a property. Public utility easements are easements in gross.
- Easements appurtenant. An easement in appurtenant, also known as a shared parcel use easement, benefits properties rather than specific people and groups. An example of this type of easement is a shared driveway that is technically on one parcel of land, but attached to its neighboring parcel.
- Prescriptive easements. These are easements created through the continued use of a property without its owner’s permission. This could be a fence or another structure on the property.
For prescriptive easements to become legally valid private property easements, the unauthorized, observable use of the property must continue for a specific period of time. In California, this period is five years. In Texas, it is 30 years. Easements are attached to their properties, so they generally remain in place when the properties are sold to new owners. What this means, in most cases, is that when a new buyer purchases a property, she purchases it with the easement. She cannot typically interfere with the use of that easement by another party, whether a utility company that needs to use the property to serve the area or a neighbor who uses a path on the property to access a nearby pond; users of the easement continue to have that right even after the new owner takes possession of the property.
Other types of easements are: express easements, which are created through private agreement between landowners and recorded with their land deeds, and implied easements that arise out of necessity. An example of an implied easement is a property owner’s use of his neighbor’s private road in order to access the main road.
Visit the Tax Assessor’s Office
The first stop for property owners or potential buyers who seek information about private property easements is often the city tax assessor’s office. Often, you can find the information you're looking for here, but not always. This is because easements are not part of a property’s tax assessment, so although the assessor could have information about easements and shared parcel use in his records, he might not have all of it, and the information he does have might be outdated or incomplete.
Other Means of Finding Easement Information
For accurate information about public land easements, private property easements and shared parcel use, a property owner or potential buyer should head to the county clerk and look at the property’s public records. Legal records of easements in gross and easements appurtenant can be found with transfer deeds and other documents related to a property. Finding out whether there is a prescriptive or implied easement on a property can be trickier because proving that this type of easement exists requires the easement's user to prove that it fits the criteria for a legal easement, and this criteria varies from state to state. Prospective buyers concerned about these kinds of easements can work with real estate lawyers to determine not just whether easements are present on a property, but also their validity.
Another source of information about utility easements is the utility companies themselves. Property owners and prospective buyers can contact utility providers and request information about existing easements on specific parcels of land.
Individuals considering buying property can also seek easement information from their title insurance providers. A title insurance provider verifies real estate titles and provides owners and prospective owners with information about liens, easements and other issues about their properties that could lead to lawsuits and title disputes.
Easement Rights for Property Owners
When a property with an easement in gross is sold to a new owner, the easement on the land that permits use by another party remains in place. However, the holder of the easement cannot sell the easement itself. This is true of public land easements and private property easements – if a utility company or another easement in gross holder no longer needs their easement, they cannot sell or transfer it to another holder without the landowner’s consent.
An easement appurtenant remains in place when either property involved is sold. A new purchaser is typically required to abide by the easement, though she may challenge it by removing the feature that originally made the easement necessary, by executing a release agreement by quieting the title. Quieting a property's title is a legal action by which the owner asserts that an easement is not legitimate for some reason, such as an incorrect survey of the property boundary or that the easement had been relinquished through a quitclaim deed.
Read More: How to Type a Legal Document for Easement of Property
Find easement information from county property records, local utility companies and the city tax assessor.
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