What Is an Easement in Real Estate?

Introduction

What is an easement in real estate? In brief, it’s a legal right that someone else has to cross your land or to use a part of it for a particular purpose. That someone else may be a person, people, business or other legal entity.

Sometimes, an easement exists for the public good. Suppose a water main is buried in your front yard and requires repair or essential maintenance. The water supplier must have a right to enter and use your land to keep your and your neighbors’ faucets flowing.

But, sometimes, easements are historical curiosities. Suppose, in the 19th century, a homeowner granted his daughter who lived next door a right to use his backyard as a shortcut to the general store.

If that right appeared on the deeds or title, it could still exist. And that’s even though both the homeowner and daughter have passed and you’re the current homeowner. The first you might know about it could be looking out your window to see your neighbor in your yard.

You can protect yourself against such surprises with title searches and title insurance. But be aware that you have duties to perform with these. And further down this page, we’ll tell you how to maximize that protection.

In this article (Skip to...)

• What is an easement in real estate?
• Should I buy a property with an easement?
• Common easement types
• How to create or remove an easement
• FAQ

What is an easement in real estate?

Law.com defines an easement thus: “the right to use the real property of another for a specific purpose. The easement is itself a real property interest, but legal title to the underlying land is retained by the original owner for all other purposes.”

In other words, it’s your land but others may have a right to access it and perhaps use it. One common easement is the right of a neighbor for specific use of your driveway to access his or her home. Once that easement legally exists, there’s nothing you can do about it. And you mustn’t block access in any way including parking your car in a way that obstructs the neighbor’s free access.

Clearly, it’s important that you’re aware of all easements that affect your home before you buy it. They could affect your enjoyment of it. Indeed, an onerous easement could make it more difficult to eventually sell the home and could even reduce its market value.

Should I buy a property with an easement?

What is an easement in real estate’s impact on the desirability and value of a home? That depends entirely on the effect the easement has on the homeowner’s enjoyment of his or her property.

Driveway access for elderly neighbors who leave their house only two or three times a week is probably not a problem for most home buyers. But suppose your driveway is used by a distribution company and carries heavy trucks at all times of the day and night. That could knock tens of thousands off the value of an otherwise desirable property.

When you come to sell, your assessment of the impact of an easement will probably be similar to most other people’s. If it barely bothers you, it will likely not affect their desire to buy your place. However, an appraiser may take the existence of an onerous easement into account when valuing your home for your buyer’s mortgage application.

How can I find out if there are easements on a property?

There are various do-it-yourself ways in which you can research easements on your next home. Start with utility companies, the county land records office and city hall.

But most homebuyers let professionals do the work for them. Title companies check all sources, including the home’s deeds and title, to see what easements exist. And title insurance can protect you from unknown easements by battling in the courts on your behalf.

But that word unknown is crucial. If the title report includes mention of an easement, the insurer will likely not lift a finger to help. It will say you knew about it before you closed on your purchase.

This means you absolutely must read your title report before you close. Yes, it’s a ridiculously stressful and busy time when you’re preparing to move. But failing to read the title report could cost you dearly.

If you have a mortgage, the mortgage lender will insist on both a title report and title insurance at your cost. But that insurance will protect only the lender’s interests. If you want your own protections, you’ll need your own separate title policy.

Common easement types and easement definitions

What are easements in real estate? Here are some of the most common types of easements:

Easement appurtenant

One of these arises when one property (the “dominant estate”) relies on your land (the “servient estate”) to remain viable. Suppose the only access to a school or public beach was a path that crossed your land. That would be an easement appurtenant.

Not only would you be barred from obstructing access with locked gates or by siting a pool or garage on the path, but you may also be responsible for maintaining the path and its verges, hedges or fences.

Easement in gross

An easement in gross happens when you give a person permission to use your parcel of land in some specific way. Perhaps you let her park her car on your drive or allow him to use your pool.

The permission is granted to the person as an individual rather than as the owner of a property. So, no rights survive the selling of his or her home.

It’s best to put such permissions in writing. Otherwise, you risk creating an easement by prescription.

Easement by prescription

An easement by prescription may arise if other people use your land for maybe a decade or two without your objecting. Suppose locals use a strip of your land as a shortcut. You don’t really mind (perhaps it’s out of sight of the house) so you turn a blind eye.

Those using your land are technically trespassing. And, depending on your state’s and local law, after perhaps 10 or 20 years of use, they acquire a right to continue to do so. They created a prescriptive easement or “acquisition by adverse possession.”

If you’re worried that you might accidentally create such an easement, put in fencing with a locked gate and post No Trespassing signs.

Technically, there’s a difference between “prescriptive easement” and “acquisition by adverse possession.” But they can have similar effects so we’ll lump them together. Consult an attorney if you think you’re in danger of creating either.

Other types of easements

An “easement of necessity” occurs when someone has no choice but to use your land. The most common example is when their only access to their home is over your yard. Legal website NOLO explains, “The law grants people a right of access to their homes, for example. So if the only access to a piece of land is by crossing through your property, the law recognizes an easement allowing access over your land.”

Utility easements are commonly written into title documents. They allow utility companies to make repairs and carry out maintenance, as required. Typically, you’re unlikely to experience much hassle as a result of these and they shouldn’t normally affect either your enjoyment of your home or its value. Even if your title doesn’t provide a utility easement, you might have to allow utility companies access for necessary works.

Private easements are created between neighbors, either as a favor or perhaps in return for money. For example, if your neighbor installed an array of solar collectors near your boundary, you might agree not to obstruct their sunlight with trees or high fences. Or someone building a home near yours might need his private sewer pipe to be buried under your land.

Public easements tend not to bother individual homeowners. They generally apply to governments and maybe homeowners’ associations. Cornell Law School explains: “Public easement is the right of the public to use certain streets, highways, paths, or airspace, even though the areas are owned by others. In a public easement, the person who owns the land has to allow members of the public to access a defined area of his land for the reasons stated in the easement. A public easement is meant for the enjoyment of the whole public.”

How to create or remove a property easement

You can easily create an easement either accidentally or on purpose. An accidental one might be an easement by prescription.

To create one deliberately, you need to draw up a written agreement with the party to whom you are granting a right to use your land. That should be registered as part of your title.

Getting rid of an existing one is much more difficult. You could perhaps do so by negotiating with the party that benefits from the easement.

And you could try in court to block or limit an existing easement, especially a prescriptive one. Whether or not you win the case will depend on the circumstances.

What is an easement in real estate? The bottom line

Millions of American homes have easements. And the overwhelming majority create few or zero issues for their owners. They don’t affect the homeowner’s enjoyment of their property and don’t impact its value.

However, some types of easement can be problematic. Strangers having a right to cross your yard can be intrusive. And rights of access over your driveway or private road may be something or nothing depending on your neighbors and their usage of it.

It’s really very important that you know about easements that apply to the piece of property you’re buying. You can find out by reading your title report before you close on your purchase.

Remember, your title insurance (if you have a policy) only applies to unknown easements. One that appears in your title report is known and therefore won’t be covered.

Don’t hesitate to ask questions of your title agent or attorney if you’re unclear about any aspect of an easement relating to a property you’re purchasing.

Chances are, it won’t be a problem. But sometimes an easement is.

FAQ