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3 Main Types Of Easements On Property
Many regular homeowners would have never heard of the term easement. Some might have come across it in the past but have no idea what it means and whether it applies to them.
Real estate investors however, should at least have a basic understanding of what it encompasses.
This is because easements on a house can be both a troublesome tedious burden or a goldmine in terms of extra profits.
An easement is basically a nonpossessory right one party has to the use of land which belongs to another party, for special purposes that is in line with the general use of land. while the original owner retains ownership of legal title for the land.
In many circles, this right is also called a privilege.
Some examples of easement rights in practice include electrical and telephone lines running over private property and water pipelines running below.
This is why one of the most common users of easements are utility companies.
How easements come into being
It goes without saying that land owners can grant specific easements via written documentation to corporations or governments intending to conduct some works on the land.
This is understandable as a legally binding easements has to be granted in writing.
Owners can even reserve easements when selling a property. Withholding them allows the sale or lease of these rights to other parties. This practice is commonly observed when developers sell apartments on real estate and grant easements to utility companies to provide their services.
Governments can also purchase an easement for specific use. This even is called government condemnation.
There are also circumstances for easements to arise without written agreements.
For example, if the owners of a parcel of land sells an area at the back where the only manner to access the back area is via the front of the land, common sense says that the new owner of the land at the back will have the right to enter his house via walking over the front. Otherwise the new owner would not be able to enter his own home!
The good thing is that this is not just a stroke of common sense. But in fact written into easement legislation. And it is labeled easement by necessity.
Another method where easements without written documentation is easement by prescription. If for example a privately owned alley has been used by a person for a long time without permission, this person can claim a legally recognized easement. However this method of acquisition requires some criteria to be met.
Here are the 3 main types of easement
1) Easement appurtenant
This is a very specific easement that refers to the driveway from a road to the back lot.
These types of driveways are automatically part of the deal whenever the back lot is sold. The easement is legally connected with the back lot. And therefore implied.
If you think this is a fair benefit for the owners of back lots. Think about it from the front lot owners’ perspective. Because the rights of the owners of the back lots are perpetual.
New owners of the front lots will have to take on the burden as well. Effectively passing the burden from previous owners to new owners.
It is against the law for front lot owners to put up some kind of barrier that disrupts the access to the back lots as back lot owners will have a right of way.
This is why it is often said that easement appurtenant benefits one property, but burdens another.
Because of this structure and arrangement, the front lot is called the servient estate as it serve the back. While the back lot is called the dominant estate, dominant tenement, or dominant hereditament.
This easement can be terminated when it’s necessity no longer exist. For example, when a new road is built at the back granting access from the back.
2) Party wall easement
A party wall easement is an easement appurtenant.
This exist when a single wall resides on the lot line that separates 2 different parcels of land.
It is not necessary for this “wall” to be an actual wall. This easement still takes effect when the “wall” is a fence or something similar.
In this situation, the 2 different owners will own the portion of the wall on his/her land, AND an easement for the other portion of the wall for physical support.
This is commonly observed in real estate like terrace houses and townhouses where each house is built side by side and sharing a common wall.
This is important as when a party decides to demolish his/her house, the neighbor’s house will be torn down as well as they share a common wall.
In this case, the owner must leave the wall for the adjacent house and provide special support if necessary. This is a requirement during demolition and up until a new house is constructed.
3) Easement in gross
This is like an easement appurtenant except that there is no dominant estate.
It benefits an invididual or an entity instead of a land parcel.
Easements for gas lines, telephone lines, power lines, etc, are all easements in gross. They belong to the corporations instead to a parcel of land.
This means that the servient estate is the parcel where the companies have the rights to do their stuff like running their pipes and lines. All owners of the parcel, whether current or future, are bound by these terms.
Upon the death of the owner of the easement, it typically expires.
Termination of easements can be due to other reasons including by necessity, expiration, abandonment, merger, express agreement, discontinued use, etc.
Creation of easements
How easements are expressed can have big implications for both dominant and servient tenements.
One basically needs to know what one is working with in order to manage it effectively.
These are written agreements signed by all parties and recorded with the deed of a property.
These are usually created due to two parcels that were once owned by a common owner, or treated as a single tract.
Thus, the usage rights are implied when one party has to use another in order to access another.
As mentioned earlier, prescriptive easements can be created when one party has used an easement like an alley for a number of years without any objection from the landowner.
There are a lot of types of easements that can be placed on a property.
If we go into the specifics, there can be those for utility, private, public, by necessity, by prior use, visual, storm drain, beach access, aviation, sidewalk, prescriptive, conservation, dead end, etc.
In addition to that, they can either be affirmative or negative.
As with all legal matter, do check with a proper real estate attorney whenever you are in doubt over legal issues.