Before explaining the ways to create a real estate easements, it helps to know what it is and why they’re created. An easement is the right of one party to use the property of another for a specific purpose. In most cases, real estate easements transfer with the property also said to “run with the land.” Easements can be created by and for the benefit of individuals or businesses for many reasons.
Easement by Condemnation
Suppose you own a piece of property adjacent to a public roadway, and the county or state decides to widen the roadway. The law of “eminent domain” allows the government to condemn a portion of your property for the public good. The roadway gets widened, and you lose the rights to use that portion of your property for your purposes. Whole businesses and their structures are often closed down and demolished for the widening of roads or highways.
Easement by Agreement
Often neighbors create easements when one neighbor needs to use a portion of the other’s property. This type of easement is common in rural areas to allow a neighbor to use a portion of another’s property as a road to access the main highway. Sometimes it becomes a shared road, and there is a road maintenance agreement as well that spells out how it will be maintained and how the costs of maintenance will be shared.
Easement by Conveyance
Property deeds are the conveyance normally used for creating these easements. Using the previous easement by agreement example, if you own property and sell a portion of the property that has no access to a public roadway, you can grant an access easement in the property deed to the buyer and subsequent owners of the property you’re selling to access the public road through your property. You would carefully define that access, and if a shared road is involved, there could be a road maintenance agreement as well.
Easement by Necessity
Closely related to the previous example easement by agreement or conveyance, this easement is created most often to allow a property owner to gain legal ingress to and egress from their property. This situation happens when various parcels of land are bought and sold, and one ends up surrounded by property owned by others, and there is no access to the property. A court can create an easement for that property owner through the property of another, as most states do not allow “land-locked” properties.
Easement by Prescription
This one may not be as friendly as some of the others. Suppose you own 50 acres in a rural area that you purchased as an investment many years ago. One of your neighbors found that they could access the closest public roadway by placing a road or driveway across one corner of your property, and they do so without your permission. Laws vary by state, but after a specified period, if you do not contest this road and access, the other property owner can claim an easement by prescription.
Real estate easements are quite common, with the most common example being utility easements along the edges of property for the construction and maintenance of utility lines and pipes. They are generally useful and not contested and can even involve compensation to the property owner.
When buying a home, home buyers must do their do diligence to investigate if any easements exist on the property they are purchasing. Contact Mona Koussa for best ways to investigate easements.
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