The Basics of Easements on Real Property
Easements are either seen as harmless items that can simply be ignored, or as crippling encumbrances on a piece of property that diminish its value. These are the extreme circumstances and easements generally fall somewhere in between. Having a basic understanding of what easements are and how they affect real estate is important to demystifying easements.
In its most basic definition, the term easement covers several different rights that can either encumber or enhance a parcel of property. It is the right of one party to profit or benefit from or to make lawful use of the estate of another as specified while the owner of the burdened parcel still maintains the title and probably the right of possession.
Easements often come into focus in residential real estate, and are usually discussed when marketable title is being sought during closing. A shared driveway, for instance, usually involves an easement for one or both neighbors sharing the driveway. When you buy a house with an easement, you take the house subject to the easement, which means that you’ll have to accommodate it. In the case of the shared driveway, for instance, even if the driveway was entirely on your property, you couldn’t build a fence that restricted your neighbor’s use of the driveway.
There are two main types of easements as outlined below.
Easements in Gross: An easement in gross is a personal interest that a party has in the real estate of another. The key feature of an easement in gross is that when a grantor gives a person a right, the right cannot be given to others. An example would be a grantor giving a trusted neighbor the right to use the cottage dock, but the easement in gross would not pass to a person if the neighbor sold the property.
Easements Appurtenant to Property: An easement that is appurtenant to a parcel of real estate benefits a specific parcel. This is different than in easement in gross as it runs with the land.
How are Easements Created?
Easements are considered an interest in land and therefore, to satisfy the statue of fraud requirements for real property, it must be created by a writing that includes certain formalities such as a description of the parties and their addresses, words of conveyance, and a statement of consideration.
Great care should be taken when drafting easements, as parties will often interpret words broadly and beyond the initial meaning of the original parties. Easements that are not well drafted can also lead to a breakdown in relationship between what were formally neighbors who enjoyed a friendly relationship.
Can an Easement be Terminated?
The short answer is it depends. There are several ways to terminate easement including by its own terms, abandonment, or when both pieces of property are bought by one party.
What Type of Easements are You Most Likely to See?
Easements come in many forms, but for a normal home or other real-property purchaser, will most commonly encounter the following.
1) Access, Driveway, and Parking Easements,
2) Storm Water and Drainage Easements,
3) Easements Conveyed to Municipal Entities, and
4) Air, Light and View Easements.
While easements are important to understand, many should not be seen as fatal to a marketable title. They are simply rights that property owners have exercised in the past, and when properly drafted and when the risk is understood by both parties, should not prevent the sale of property. However, easements, like other technical parts of real estate should be reviewed by an experienced attorney before purchasing the property.