Easements and related issues

An easement is the right of one person to use or enter the land of another. A common type of easement is a “right of way” easement (granting someone the right to cross your property to access their own property or something else, such as the beach). But there are many different types of easements, and they can be granted in many different ways. Always be cautious about allowing others access to your land, even for seemingly innocent activities like hiking or swimming. There can be legal consequences affecting your ownership of the property.

How are easements created?

Property owners commonly grant easements to utility companies or neighbors who have no other way to access a road or highway. An owner who transfers land to someone else may also reserve an easement for himself with proper legal documentation. An easement granted in this way is called an “express easement.” However, there are numerous ways an easement can come about:

• Implied easement: An implied easement is not expressly granted or recorded, but is inferred by the courts based on the nature of the land, the intent of the original parties, and other relevant factors.
• Easement by necessity: An easement by necessity can occur when there is no other way to access a landlocked piece of property.
• Easement by prescription: Under the same concept as adverse possession, an easement can sometimes be obtained by continued use over time without the consent of the property owner.

In addition to utility use and right of way, easements can grant a host of rights to the holder of the easement, such as the right to light, airspace, or recreation. Although the easement holder may own the easement, the owner still holds legal title to the property.

Problems with easements

While granting an easement can be a good way for neighbors to cooperate with each other, there are pitfalls to keep in mind. Easements can be difficult to revoke or terminate. When your friendly neighbor moves, the new neighbor may try to claim the easement, even if you did not intend to grant one (you may have only intended a temporary license). This can result in expensive litigation.

Other times, you might not even be aware someone is using your property. Maybe it's a second home, and you haven't visited for many years, only to find a neighbor using your land. Depending on the circumstances, this might result in a prescriptive easement, something you never would have granted on your own.

Both the establishment of an easement and an easement claim against your property can greatly devalue the property for sales purposes. And many buyers, for fear of a future legal claim or litigation threat, will refuse to buy such a property altogether, preferring to seek a less complicated purchase elsewhere.

Protecting your property against unauthorized use

Always proceed with caution when letting someone else use your property. A properly drafted written agreement should spell out, with specificity, the use you are granting. A verbal agreement may not be recognized in court if a conflict arises. Such an agreement enshrines the details of the easement so as to avoid confusion later. An experienced real estate attorney can draft an agreement laying out the permissive use and that such use can be revoked at any time, as well as that the use is limited by permission of the property owner. Once signed, dated, and otherwise validly executed, it should be kept in a safe place for future reference.

Many real estate disputes can be prevented by proper planning, including easement issues. Be aware of who is using your property, be careful to whom you allow access, and put your agreement in writing, outlining the specifics of your agreement.

Helix Law Firm can help with easements and other real estate issues

At Helix Law Firm, we have both the legal and real estate experience necessary to help. We can help clear up easement issues, draft an easement or license agreement, or litigate the issue in court.

If you're interested in learning more about how Helix can help with your real estate issue, please call us at (619) 567-4447 to schedule a free consultation.