When your offer for a home is accepted, it’s a cause for (a brief) celebration.
What often happens next is the title search, which confirms that the home seller legally owns the property. A clear title means that there are no liens or other claims on the property. Without one, your mortgage lender and insurer will not allow the sale to proceed.
One issue that could come up during the title search is an easement. While you will need to do some research about the specific easements on the property, their presence doesn’t mean you can’t ultimately buy the home.
What is an easement?
An easement, by definition, grants another person, entity or business the right to access someone else’s property.
While it may sound strange that someone else can use your property, easements are pretty common. Most properties have easements in place, for example, so that utility companies can access utility lines. In some subdivisions or urban areas where space is tight, an easement may be created for neighbors to share a driveway. In shore towns, there may be an easement to allow neighbors (or even the general public) to use the beach that’s on your property or a path that crosses your property.
What if an easement turns up?
If an easement is found during a title search, it doesn’t necessarily mean that the deal will fall through the way it could if a lien surfaced during the search.
Trouble generally only arises when the easement wasn’t created properly, and/or when it affects access to the home. The latter situation usually involves shared private roads, and specifically who’s responsible for ensuring maintenance of the road. Sometimes, a mortgage lender requires that there be a permanent recorded easement in place; some require a clear road maintenance agreement. If not, many lenders will deny your loan.
Typically, though, the bigger concern for homebuyers is how easements can affect your enjoyment of the home. You may not want to share a driveway with a neighbor or have people crossing a public path that’s on your property.
Other easements can affect what you can do in your backyard. For example, if the previous owner granted a solar easement to their neighbor, you may not be able to build structures, plant trees or create features that could block your neighbor’s sunlight. If you’re in a picturesque location, your neighbor may have a scenic easement to protect their view, preventing you from renovating, expanding or adding landscaping that could block that view.
There may be other implications if you plan to renovate, as well. If you’re buying an older home, for instance, there could be a historic preservation easement that stipulates what changes (if any) you can make to your home — even down to paint colors. If you’re in an HOA, there may be easements that govern whether you can make additions, add a patio or even make smaller changes like installing a fence.
Common easement types
An easement appurtenant involves more than one piece of land, such as if you have to access a neighbor’s property to get to a private beach. The easement is tied to the land needed to be accessed. This type of easement stays with the property and is transferred to any owner of that property with the title.
Technically speaking, the party that is granted access is the “dominant estate” or “dominant tenement,” and the party that gives access is the “servient estate” or “servient tenement.”
Easement in gross
Think of an easement in gross as a “permission slip” you grant to someone for use of your home’s property. This type of easement belongs to an individual or entity and gives them a benefit of some kind.
A common example is when a utility company holds an easement in gross to be able to access your property to maintain power lines. In another instance, an easement in gross can be given to a friend to allow them to fish in a pond on your property.
Easement by prescription
An easement by prescription is created after a party uses someone else’s land continuously (as if they had an easement) for a certain amount of time. The party would have to use the land without the owner’s permission, openly. The amount of time needed to pass for an easement by prescription depends on state law.
One example of an easement by prescription is if your neighbor accidentally built their fence over your property line a decade ago.
How to create an easement (or end one)
There are three ways to create an easement:
- The most common is an express easement. This is when two parties agree on the easement, then create a legal document outlining specifics and sign it.
- An implied easement is a bit more casual. Here, both parties agree to it, but it’s not written down. (Shared driveways are often implied easements.)
- An easement by necessity is created when one party has no choice but to use another’s property, such as if you’re in a small subdivision on a private road that’s technically the driveway of the first home in the development.
Some easements are easier to end than others. Easements in gross are the trickiest, because they come with your property. If the easement in gross was granted to an individual, it can’t be voided until they pass away or no longer need the easement. So, if that easement was granted for the seller’s friend to fish on your property, you will have to honor that.
On the bright side, an easement in gross is non-transferrable and the holder can’t give it to another individual or entity. Some exceptions may be made regarding commercial easements in gross, depending on your state, however.
Appurtenant easements and easements by prescription can end by agreement in writing with the other party. (Whether or not the other party will be agreeable is another issue — you may be met with a handshake or a court date.)
Keep in mind that while in the process of removing an easement, you can’t interfere with the easement in the meantime.