Sometimes easements that are in effect work smoothly for years. This isn’t always the case though. As we can see with the North Dakota landowners that had to use over a pipeline easement.
Wondering what is an easement and how it could be so important to sue over? Keep reading for an explanation of what easements are and how they work.
What Is an Easement?
When you have an easement you have the right to use someone else’s property for a specific purpose. The owner of the property retains legal title.
There are express and implied easements. While an easement can be created by oral agreement, these don’t always hold up in court.
To ensure that you have a legally binding easement you need to put it in writing. Then you need to file it with the county recorder.
Types of Easements
The most common way easements are used today are for utilities, municipalities, or cable lines. This is how lines for power, phone, cable, sewer, and water get installed for our city infrastructure.
This is the category that the utility easements fall under. The deed will describe these easements.
The property owner is free to do what they like with the property. They just aren’t allowed to interfere with the utilities.
When two people create an easement this is a private easement. Usually, they are to give access to a sewer line or driveway.
These are the easements that usually get created by verbal agreement. They should be in writing though.
Easement by Necessity
These easements arise when one property owner is forced to cross a neighboring property to get to theirs. No property owner may be denied access to their property.
Because of this, the property cannot become landlocked. Usually, this is taken into consideration when land gets divided. But as time goes on and land is sold, a piece may no longer have access to a road.
This is an easement that is granted for a specific purpose or length of time. Other easements are ongoing with no definitive end date. It is also different than a necessity as while that is for a purpose, it is also ongoing.
An example would be granting access to allow the neighbor to park their boat for the summer. This is a specific use for a specific amount of time.
Each state has specific laws about what is allowed for a prescriptive easement. So make sure you check with a knowledgeable real estate attorney. The easement holder may even be required to pay a portion of the property taxes for the land they use.
Sometimes a part of a property needs to be used for public use. A common use is to give public access for a park or touring.
Prior Use Easements
Sometimes an easement will get formed by the intention of the property owners. But the owners never take the action to record the easement. When this happens it has to satisfy five elements for it to be enforceable.
- Common ownership of the property at some point
- the property was then separated into two at some point
- the use was before and after the aforementioned severance
- there is notice of the easement
- The easement isn’t for a beneficial or necessary use
This can be a tough threshold to achieve so if you have a debate involving a prior us easement it is best to consult with an attorney. These are the types of easements that typically require a court to determine if they are enforceable or not.
As an easement holder, you are entitled to use the property fully for the purpose of the creation of the easement. You cannot impose an undue burden on the property owner though.
Easement rights can change over time and technology and land change. The court may find that the easement use is unreasonable. Conversely, the court could also find that the proper owner’s use has become an unreasonable burden on the easement.
Assumed Easement Rights
There are certain easement rights that are assumed and don’t need recording. These easements are assumed and recognized.
Aviation: The space above your property is open to aircraft where needed for agricultural purposes
Storm Drains: There is the assumption that a storm drain can get installed where needed to aid in moving water
Sidewalks: This one should be obvious, but property owners don’t give permission for sidewalks as public use
Dead Ends: If the property owner’s property blocks access to the next public way, they’ll have to give access across their property
Conservation: Land trusts protect property from getting overdeveloped. the purpose is to protect property for conservation purposes.
Depending on the easement you have, some automatically transfer with the land. While others do not.
Easements that are for the benefit of the land will remain with the property. While easements that are the benefit of the specific person are not.
If the easement doesn’t remain with the property then it is up to the new owner to decide whether or not they will honor it.
If you don’t specify a time limit for your easement, then it is assumed it is indefinite. If there is an end date, the easement holder must stop using the property on or before the end date. Otherwise, their entering the property can be deemed a trespass.
Are You Dealing with an Easement?
Do you currently have the right to use your neighbor’s property? Maybe you share a driveway or use a lake.
Whatever the reason, make sure you have your agreement in writing and recorded. That way your interest in the property is safe in the event that your neighbor sells their property.
You shouldn’t be asking “what is an easement?” But if you still have questions, the best thing to do is to speak with a lawyer. They can help you with any questions you may have.
Contact us today for a free consultation and we can discuss your specific easement situation.