Getting ready to buy or sell a piece of property? In any real estate transaction, it’s important to consider all of the land’s qualities that could impact valuation, current and future land use, and any potential improvements that should be made. While your eye is drawn to the obvious features such as buildings, utilities, fencing, topography, and water sources, there are other features that are more invisible to the naked eye, yet no less important to a buyer or a seller. One of these invisible features is known as an easement.
Easements are the rights given to someone else to utilize part of a property for a specific purpose. When most people think about easements, they picture the easement on their neighbor’s property that lets them drive down their long driveway without encountering any traffic lights or stop signs. However, the term can contain more complexity than that. There are multiple types of easements, and whether an easement exists on a property and what type it is could prove a headache if you’re trying to buy or sell it.
Easements are often an important factor in the value of a property when buying or selling a parcel of land. In some cases, they can even affect how you use your land. But because easements aren't always well-documented and may not be clearly defined on title, they can cause problems if you're not aware of them before you buy. If you’re considering buying a property with an existing easement on it, it’s important to understand common types of easements and how they work. This will help avoid any legal headaches later!
The Many Different Types of Easements
As you learn about the different types of easements that could exist on a property, keep in mind that an easement can be more than one type. For instance, it could be both negative and private, or prescriptive and affirmative.
Affirmative and Negative Easements
Most easements will fall under one of two categories: affirmative and negative easements. An affirmative easement is an (often temporary) right of use granted to another person. For example, you might have an affirmative easement for the people living in your neighborhood to make use of your driveway. Or, if you’re building a fence on your property and run into a tree growing on one side of the lot line, your neighbor could grant an affirmative easement so that the tree can be removed and you can continue building in peace. An affirmative easement is sometimes also referred to as a ‘non-possessory’ interest, because it doesn’t involve ownership of the property.
Conversely, while an affirmative easement grants a person or entity the right to do something on a tract of land, a negative easement entitles the owner of the property in question to compel the easement holder from engaging in a particular act on that land. In an example of both affirmative and negative easements, in an Austin case where an easement holder owned the affirmative right to operate aircraft over a property, the owner of that property held a negative obstruction easement. This prohibited the easement holder from building structures that extended into designated airspace.
Appurtenant Easements vs Easements in Gross
Easements are also classified as either ‘appurtenant' or ‘in gross.’
If an easement is appurtenant, this means that the easement attaches to, or is part of, a tract of land. These easements are said to “run with the land,” as they are part of the formal ownership of the property.
An easement in gross, by contrast, is owned by a business or entity, and does not transfer with the property when it’s purchased. Instead, it is an individual interest to use that land which benefits a specific person or organization. A title search by a prospective owner of a property would show an easement appurtenant, but not one in gross.
Express vs Implied
An express easement is affirmatively granted by the landowner through documented legal means. An express easement is usually created by a deed, and is in writing. Its terms are dictated by the language creating the easement, rather than by the actions of the parties involved.
However, even when no document or formal agreement has created an easement, an easement might still be understood, or ‘implied,’ by a situation or circumstance. These types of easements are generally applicable to parcels of land that were once a larger piece of land split into smaller segments. To create an implied easement, three requirements must be fulfilled:
- The easement must be necessary to the enjoyment of the piece of property in question
- The land must be divided, so that the owner of a parcel is either selling and retaining part, or dividing the property and selling pieces to different owners
- The use claimed in the implied easement must have existed before the severance or sale
Related to the existence of express and implied easements is the prescriptive easement. A prescriptive easement usually arises from a misunderstanding of property boundary lines that persists for an extended period of time. Courts recognize these easements because the individual claiming them used the property for a long period of time (how long, exactly, depends on the state), and relied on the use of the land. For example, if your neighbor uses your private gravel road to reach a public road for ten years without you as the property owner attempting to stop him, a court may grant him a prescriptive easement.
Private vs. Public Easements
Private easement agreements are negotiated between two private property owners to minimize personal property concerns. This usually extends to issues such as someone running sewer lines under their neighbor’s property, or installing a structure on their yard or home that may obstruct another person’s view.
A public easement, as you may be able to guess, grants usage rights to the land to the public at large, giving the right of use and enjoyment to the entire public or to a specific community. Once granted, a public easement becomes appurtenant, or part of the land on which it is based.
This type of easement protects wildlife habitats and natural resources from being destroyed by development or pollution with the intent of preserving them for future generations. Examples of conservation easements include wetlands conservation efforts where developers must have permits from the EPA before commencing construction on certain areas.
Get to know your property with Land id™
When you purchase a property, it’s important to know if there are any easements on the land, and if so, to understand the different types of easements and what they mean. Easements can often be burdensome for both the buyer and seller of the property. While some easements are well-documented and clearly defined, others have been around so long that no one knows who owns them anymore.
When surveying a piece of land for sale or purchase, consider making the process a little bit easier with Land id™ (formerly MapRight). As you collect all relevant information about the property, including the original deed or development plans, we help you organize it in a single location, making it a lot easier to access and communicate essential information about the land.
Our GIS mapping app also allows you to digitally preserve details about the property, and add photos, videos, labels and other attributes to your maps so you can make sure every unique detail of your property – and any vital information that comes with it – is visible and shareable with anyone, anywhere. Sign up for a free 7-day trial with Land id™ today!