Easements allow someone other than the owner of a property to use it for a limited purchase such as a right of way, right of entry or right to water. For example, your neighbor has a landlocked property that, without an easement to drive through your property, he or she would be unable to use it because there would be no way to access a public right of way. Landlocked means that the property is completely surrounded by land or water that is owned by other people or businesses. In legal terms, the dominant property is the land that benefits from the easement, and the servient property is the land that is burdened with the easement.
Types of Easements
There are two types of easements, affirmative and negative. Affirmative easements give the holder the right to do something, such as travel on a road or path through your land. This type of easement is called an appurtenant and is attached to the land. This means that when the property is sold, the easement transfers with it. Negative easements prevent the owner from doing something, such as erecting a building that obstructs a view or obscures light. For example, your neighbor has solar panels installed and erecting a building on your land would obstruct the sunlight.
What Rights Does an Easement Give to the Holder
In general, easements do not give the holder of the easement rights to exclusive possession and he or she cannot improve or take from the land and cannot sell it. The holder can only use the easement in the manner specified in the agreement. The owner is normally free to use the property as he or she sees fit, but cannot impair the rights of the holder to use it. You should review the written easement agreement to find out what your obligations to the holder actually are.
If you do not know the purpose of the easement, you can review the legal description given in the title to your home to find out if it notes that there is a legal easement. If so, it should note a reference number that may include a book and page number. You can then go to your county clerk who can locate the document based on the reference number and make a copy for you. It would be wise to get a copy since you could be liable for damages if you unknowingly interfere with the holder’s easement rights.
What if an Easement Agreement Has Not Been Recorded?
If a surveyor labeled an easement, but there is no agreement on record, your title would have more than likely listed it on your title policy and noted that it is not covered under your insurance. This means that is, at some future date, someone decides to claim the right to use the easement, the title insurance company would not pay the costs involved to have the issue resolved.
There are other forms of easements and the laws related to them vary by state. For purposes of this article, we have only covered easements that transfer with the property when it is sold. If a home you would like to purchase notes that there is an easement, you may ask your real estate agent to obtain the information related to it for you.
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